Study On Non-victim Crime

At present, non-victim crime is still a hot topic in criminal jurisprudence, criminology as well as criminal policy science. Recently, a professor- involved wife-swapping case and a euthanasia-help case has brought intense introspection and debate in public, which fully demonstrates that the need to deepen the study of non-victim crime is growing more and more urgent. Social progress is crystallized in the constant upgrading of people's ideology and conception and law belongs to the sphere of consciousness, therefore, law should keep pace with the social consciousness, especially, the criminal norm making an appropriate response according to the change. Some formerly reasonable norms will becomes not so acceptable in people's mind as the society advances, for which there are some subjects of widespread controversy in society. The existing depute is exactly a reminder, showing which issue should win focused attention in law research and which criminal norm needs a new consideration. The two foregoing cases just show that non-victim crime is becoming this kind of issue.This paper has carried on a primary systematic research on non-victim crime, involving defining the basic concept of non-victim crime, investigating decriminalization's basis of legal theory and philosophy and analyzing criminal policy of non-victim crime. Through the perspectives of the historical background where the concept of non-victim crime arose and the legislative history of non-victim crime's decriminalization in the West, on the basis of precedent achievements, and considering the domestic social reality and the present legislative state of non-victim crime, several new points has been raised as the following: A consensus has been created on defining the superordinate concept of non-victim crime in our country's academia about criminal law, that here the'crime'should be understood from broad sense—belonging to the scope of criminology. Because the'crime'of decriminalization or criminalization must be a concept of criminal jurisprudence, for both of them are made for discussing some action should be added to the crime circle of criminal law or not; well then, the'crime'of non-victim crime is naturally a concept of criminology, by the reason that the'crime'of criminal jurisprudence is the action that has been criminalized. While, the understandings of'victim'are widely divided: criminal counterpart or third party whose legal interests been violated by the crime; natural persons including the actor himself or herself whose legal interests been violated by the crime;'persons'including natural and unnatural ones (society and state) whose legal interest been violated by the crime. To understand a concept from broad or narrow sense is in itself neither good nor bad, but there is a best option for a theory or one of its aspects. I'm disposed to define'victim'in this way that'natural person excluding actor himself or herself whose legal interest has been violated by the crime'. This choice can serve well to the beginning of the study in the following discussion, at the same time and shows some attention to people's habitual understanding. Consequently,non-victim crime can be defined in this way: Illegal actions whose actor has no will to do harm or be harmed but is voluntary and the outcome is like this, self-harmed, social morals been trespassed or social administrative order been broken. With this clear-cut concept, we may find some characteristics of non-victim, thereby; categorization would be well carried out. Through the investigation of the action subject, objective, and subjective state of non-victim crime, the characteristics should be obtained as follows:1. During the crime, the violated legal interest is from the actor himself or herself, social morality and social administration, but the criminal counterpart or third party, for which it's called'non-victim crime';2. The actor has will to get involved but to do harm or be harmed;3. When an action is completed, the'victim'(the self-harmed or society) often has no will of proceeding;4. The actor should be full capacity, or the aggressor's action not a crime. Since that legal interest has been violated is the essential characteristic of crime, non-victim crime can be classified in conformity to the kind of violated legal interest in the following way:1,During the aggressor's action, the violated legal interest just belongs to the actor, like suicide, euthanasia, drug-taking and drinking etc.;2,The action trespassing social morals, like prostitution, adultery, mass promiscuity, abortion etc.;3,The action breaking social administrative order, like gambling, usury, drug-taking, drinking etc.In the West, decriminalization of non-victim crime is powerfully supported by some basic theories of law and philosophy, including legal interest violation, the modesty of criminal law, liberalism, safeguarding human rights thought and benefit's theory of criminal law. All of these theories are worthy the learning of domestic legal professional circle in theoretical research and legislation of criminal law. But I tend to consider that these theories essentially boil down to two points: legal interest protection and benefit's theory of criminal law. The modesty of criminal law and legal interest protection are at bottom one thing, just like addition and subtraction, multiplication and division fundamentally one thing. In practice, it's the problem of benefit's theory of criminal law that weather the goal of legal interest protection in legislation, justice and law enforcement would be fulfilled and that to what extent does it come true meets judicial cost at the most reasonable juncture, which needs empirical analysis to guide legal practice to enhance the benefit of the rule of law. At last, I bring forward some suggestions of carrying on the strategy of separate layer consideration in dealing with decriminalization of non-victim crime in criminal legislation. Non-victim crime is an abstract category but a concrete one, and its sub-categories count as relatively concrete ones. Therefore, as an abstract broad category of crime, non-victim crime cannot be generally considered one that should be criminalization or decriminalization, just like we cannot say people of a city are totally bad or good. By contrast, only a comparatively concrete crime, like Euthanasia, gambling, mass promiscuity, should be considered worthy criminalization or decriminalization; Some instructionally theoretical research need to be done for relatively concrete categories, such as crime in which violated legal interest belongs to the actor himself or herself; Thoughtful or theoretical study should be done for the abstract category, like the legal interest protection and benefit's theory of criminal law for non-victim crime. For that reason, I raise theory of separate layer consideration for the research of non-victim crime in the hope of being helpful for enhancing the level of theoretical study of non-victim crime and the scientificity and rationality of related legal practice. For instance, when discussing the problem of decriminalization, euthanasia should be divided into three categories: voluntary, involuntary and non-voluntary, and each one of them must be specifically analyzed. The voluntary is carried out according to the will of patient, so it has no moral barrier but shows humanitarian caring, and should be decriminalized. The involuntary goes against the will of patient, seriously violating social morals, which has constituted a crime of criminal jurisprudence, and should be punished by criminal law. The non-voluntary is a complex one which need to be analyzed by two standards: a, presumption of the possibilities of patient's will; b, patient's illness is serious enough for him or her approaching death. If coincident, the voluntary should be decriminalized; if not coincident, it has constituted a crime of criminal law.The whole thesis can be divided into three parts: the first chapter is the fundamentally theoretical research of non-victim crime, including the origin of the concept of non-victim crime as well as its debate , definition , characteristics and classification; the second chapter is of the comparison of legislative evolution between China and the West and the basic theory of decriminalizing constituting three parts, The legislative evolution of decriminalization, the basic theory of decriminalization and the legislative comparison of non-victim crime between China and the West; The third chapter is the domestic outlook of criminal policy of non-victim crime, including the rational choice of domestic legislation of non-victim crime—theory of separate layer consideration—and the description of the domestic main non-victim crime in details. So our first imperative is to make more research on non-victim crime in the hope of the system of criminal law constantly enriched and perfected and, what's more, providing theory reference of legislation of criminal law.