| To carry out the principle of adapting crime to punishment is to punish when the crime is equal to the crime and punishment,and to insist on a kind of criminal law concept of substantial justice.Theoretically speaking,in order to realize such a basic concept of criminal law,the focus should not only stay on the perpetrator of the crime,but should be extended to the victim,its purpose is to relatively accurate determination of the perpetrator of criminal responsibility and the severity of the penalty.On the other hand,in judicial practice,there is also the situation of ignoring the role of the victim in the case and mechanical sentencing resulting in abnormal penalty,such as Xu Ting case,Yu Huan case,and so on.Therefore,no matter from the implementation of the basic principles of criminal law,more specifically including behavioral interaction theory,the theory of right disposal in the intersection of civil punishment and the recovery of legal interests,or to ensure that every case is dealt with fairly,we should pay attention to the systematic study of the victim factors into the evaluation of criminal law.Thought logic for the victim factors into the evaluation of the criminal law study,this paper mainly from three aspects: one is from the whole criminal law system up to the victim factors into the evaluation of systemic construction to lay the theoretical foundation,in fact is also put forward the criminal binary structure(country)--criminal to criminal ternary structure,criminal offence,the victim(country)transformation of original ideas.Only from the criminal dual structure to the criminal ternary structure,the theory of criminal law,criminal law legislation and criminal justice to the victim factors can be coordinated.The second is to focus on the proof of the victim factor into the criminal law evaluation system so as to affect the criminal discretion optimization adjustment of the justifiable basis.Only the integrity of theoretical assumptions(criminal ternary structure)does not directly cause the changes of punishment relational structure,but to combine the existing criminal law theory,criminal law legislation including the criminal judicial practice,to the objective,comprehensive construction of the victim factors into the evaluation system of the criminal law legitimacy according to,this is also for the future of the criminal law theory and even criminal law legislation to improve the victim factors into the evaluation system of criminal law provide certificate.Thirdly,on the basis of justification demonstration,it systematically and categorically constructs the logical system of bringing the victim factor into the criminal law evaluation and makes suggestions for improvement.About 180000 words,this paper includes six parts,in addition to the introduction,which is divided into five chapters,from the problem consciousness to the formation of the innovation points,from the victim of basic concepts and important theory argument to the systemic construction of typed the victim factors,its contents are closely around legitimacy and improve the recommendations,makes this paper formed the systematic and logical research ideas and research content.The details are as follows:The first chapter of the victim has carried on the textual research of the origin and meaning of the word,the development of the concept of the victim had class society before the advent of stage,stage of class society and the status of the victim return phase,including the enlightenment thought and concept of punishment of the criminal law under change has important influence,at the same time,the social defense theory of later will be the status of the victim to the height of the national protection,and then to the formation of the concept of restorative justice under the human rights campaign,the victim rights protection reached unprecedented importance.This also reflects from another side,although the protection of the rights of the victim is attached great importance to,but ignored the victim factors on the criminal conviction and sentencing factors of the important influence.This is also the significance of sorting out the development process of the "victim" in this paper.On the other hand,in this chapter,also from the whole of the victim factors into the criminal law evaluation types and macro basis for the overview,that is,the victim factors into the criminal law evaluation types mainly include: victim commitment,victim fault and victim understanding;The macroscopic basis of bringing it into the evaluation of criminal law is mainly the influence on the illegality,the liability and the conformity of the constitutive elements.As for the detailed key argumentation and system construction will be the focus of the last three chapters to solve the problem.The second chapter has carried on the systematic theory demonstration to the victim factor into the criminal law evaluation justification basis.Specifically,including four aspects of legitimation according to: first,the criminal law has the dual value of punishing crime and protecting human rights and tasks,therefore,for the determination of criminal punishment should also pay attention to during the process of the protection of its rights,one of the most important thing is to get a fair evaluation of criminal law,namely the reasonable accurate conviction and sentence.In other words,the legitimacy of penalty not only lies in the objectivity of its basis,but also in the rationality of the type and range of penalty,otherwise the penalty is not legitimate.Recovery will be the focus of the criminal law on the other hand,the law benefit from focus on punishing criminal and to both pay attention to the rights of the victim protection,however,to realize the justification of punishment,must also be an objective and comprehensive evaluation of the victim factors,so as to promote the penalty for crimes exert more refinement,rationalization,enhance the effect of the legitimacy and execution of punishment.Secondly,from the perspective of criminology,the occurrence of a crime is the product of the interaction between the criminal and the victim under a certain space-time condition.Further,there are at least five modes of interaction between the criminal and the victim.Therefore,the evaluation and identification of the criminal act and its perpetrator cannot be separated from the attention to the victim factors and the study and judgment.However,for this article,the main purpose is to clarify the conviction and sentencing of the perpetrator of the crime,should pay attention to the analysis of the factors of the victim,in order to be able to more accurate,comprehensive analysis of the criminal responsibility of the perpetrator and should be punished penalty.Thirdly,the inclusion of the victim factor into the evaluation of criminal law is mainly reflected in the theory of victim self-accountability in criminal law theory.Generally speaking,its basic meaning is that individuals with free will should be responsible for the responsibility arising from their self-determined behavior.As far as crimes are concerned,not all crimes are formed by the perpetrator unilaterally,on the contrary,in some special cases,the victim factor often plays an important role.Therefore,bringing the victim factor into the criminal law evaluation is also the criminal law evaluation that should be faced by the individual with free will.Only in this way can we truly realize the adaptation of crime to punishment,the realization of punishment when its crime,and the realization of substantial justice.Fourthly,from the perspective of judicial application,the principle of proportionality starts from the restriction of police power on individual freedom,so as to achieve the two-way protection of public legal interests and individual legal interests.The core of the principle of proportionality is actually appropriateness and necessity.When it is applied to the evaluation of criminal law of criminal victims,its basic function lies in the realization of the appropriateness of punishment and the necessity of punishment.As for the former,only by objectively evaluating the behavior of the criminal and the victim and their respective functions can the appropriateness of the final punishment be realized.As for the latter,the greater the role of the victim in the occurrence of a serious crime,the less necessary it is to prevent the criminal perpetrator's punishment.Of course,this is an optimization adjustment of the penalty based on the respect for the basic criminal responsibility of the criminal perpetrator.It can be seen that the principle of proportionality also provides an important justification basis for the inclusion of the victim factor into the evaluation of criminal law.The third chapter has carried on the systematic construction to bring the victim commitment in the criminal law into the criminal law evaluation.First of all,it makes clear that there is no relevant stipulation in the criminal law of China,and sorts out the arguments in the theoretical circle.On its legal effect,there are mainly opinions such as exclusion of social harm,exclusion of criminality,measurement of legal interest,and combination of abandonment of interest and abandonment of legal protection.Furthermore,the author reviews various theories,and points out that the victim commitment theory has practical basis to produce legal effect,such as conforms to the goal of order and economy pursued by criminal law,and the value of protecting freedom by criminal law.Secondly,the author has also seen the plight of the victim's commitment in the evaluation of criminal law,including: the contradiction with the principle of a legally prescribed punishment for a crime,the contradiction with the four elements of the crime,the legislative basis and the standard of proof and other aspects of the problem.Again,in order to perfect the victim promise according to the evaluation of the criminal law theory and practice,the author also take an examination of the continental law system,Anglo-American law system and our country Taiwan and Macao region's commitment to the theory and legislation of the victim,in general,inside and outside the domain of commitment to the victim's theoretical controversy exists,and legislation.Finally,on this basis,the author puts forward some suggestions for the systematic construction of this chapter: First,the victim's commitment should be integrated into the criminal constitution system;Secondly,make clear the constituent elements of the victim's commitment;Thirdly,reasonably distinguish the difference between the victim's commitment and excessive commitment.Only by achieving the above three points can the theory of victim commitment become more systematic,connect with the criminal constitution system of our country,and provide an important demonstration for the future criminal law legislation.The fourth chapter carries on the systematic construction to bring the victim fault in the criminal law into the criminal law evaluation system.First,the concept of the victim's fault and its influence were summarized,and the fields inside and outside the continental law system and Anglo-American law system,our country Macao fault in theory and legislation of the victim was investigated,including the study of the theory of the civil law about the victim fault relatively deep,and the Anglo-American law system is mainly the provisions in the "legal defense and sentencing".Secondly,it systematically explores the influence of the victim's fault on the evaluation of criminal law,which mainly includes three aspects: first,the social harmfulness directly affecting the behavior itself;The second is to affect the evaluation of the personal danger of the actor;The third is the proof process that affects the causality of criminal law.Again,also to the victim fault into the criminal law evaluation of the status quo of the plight of the analysis,in general,in theory has not reached a consensus,the reason is that the victim fault application path is not clear;In practice,it did not get the due recognition and status,but was only reflected in some meeting minutes and judicial interpretations,such as 1999 "National Courts to Maintain Rural Stability Criminal Trial Symposium Meeting Minutes".As for the dilemma,it mainly includes: the victim's fault is not the legal sentencing circumstances,the conflict with the purpose of the constitutive elements of the crime in our country and the unclear influence on the sentencing structure.Finally,the author puts forward systematic suggestions to improve the inclusion of the victim's fault in the evaluation of criminal law.Firstly,the nature of the victim's fault should be clarified.Secondly,to clarify the principle of determining the victim's fault;Third,the victim's fault into the criminal justice and even criminal legislation category;Fourth,protect the victim from the procedure to miss the evaluation of criminal law.The fifth chapter to the victim's understanding into the criminal law evaluation system to improve.First of all,it makes clear the criminal meaning of the victim's understanding,and the difference with the relevant concepts.At the same time,it also clarifies the important value of victims' understanding,such as making up for the deficiency of state prosecutorism,fundamentally resolving conflicts and saving judicial costs.Secondly,it clarifies the theoretical basis of the inclusion of the victim's understanding into the evaluation of criminal law,which mainly includes: reflecting the reduction of the wrongdoer's responsibility,realizing the special prevention purpose of punishment and strengthening the participation of the victim.Thirdly,it is also necessary to clarify the difficulties of incorporating the victim's understanding into the evaluation of criminal law,such as excessive application of judicial practice,uneven application of circumstances,attention to material compensation and neglect of emotional factors.Based on this,the theory and legislation of the victim's understanding both inside and outside the region are also investigated.One of the more useful references is that the state clearly stipulates the responsibility of the victim's understanding factors to affect the behavior in the law.Finally,the author puts forward some suggestions to improve the inclusion of the victim's understanding in the evaluation of criminal law.Firstly,the scope of application of the victim's understanding is clear.Secondly,clear the applicable conditions of the victim's understanding and the range of sentencing influence;Third,improve the victim's understanding of the sentencing circumstances;Fourth,strengthen the legal effect and seriousness of the victim's understanding. |
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