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On The Influence Of The Victim's Fault To Sentencing

Posted on:2006-04-19Degree:MasterType:Thesis
Country:ChinaCandidate:C H BiFull Text:PDF
GTID:2166360182457099Subject:Law
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A victim's fault is one of the important discretionary sentencing circumstances. In typical crimes involved with victims, when making sentencing to criminals, most cases would consider the mutual relationship between the offender and the victim, verify the cause of the case and the victim's factor of worsening the case, and clarify the responsibilities of the two parties to be important bases of criminals'sentencing. However, no specific prescriptions about the influence of the victim's fault to sentencing are made in criminal law in our country, and there are no rules to follow for the application of the circumstance in practice, which provides large space for judges exercising power of discretion, and thus leads to the imbalance of penalty application. Through the study of this article, I hope it can arose the attention of the theory circle and of the judicial practice departments, and hence promote the legalization of a victim's circumstances. The whole article can be divided into three chapters. The first chapter discusses the theoretical foundation of a victim's fault influencing sentencing. First, the article points out that a victim's fault belongs to the discretionary sentencing circumstances. And as sentencing its basis is contained in our criminal law. The article also introduces the basic conception of a victim's fault and distinguishes a victim's fault in the sense of criminal law and that in the sense of criminal science. Second, referring to the theory of interaction, it expounds that the interaction of offending and being injured is the primary prerequisite of a victim's fault influencing sentencing. Breaking through the one-way theory of relationships concerning offending and being injured, the chapter emphasizes the level of two-way theory. It holds that crimes are always the interaction of offending and being injured and both the two can be each other's cause and result. Third, starting with the abandon of responsibility theory, it advocates the theory of condemn lowering. It argues that the criminal liability is individual's liability to the state, and cannot be distributed among the involved parties like the civil liability. So the influence of a victim's fault to a criminal's sentencing is that the fault reduces the condemning to the crime of the criminal and furthermore reduces the social harm. According to that, the orientation of the theory can make a victim's fault acquire its deserved status in criminal law, especially in sentencing theory and practice. The second chapter gives brief introduction to the legislative status quo of the influence of a victim's fault to sentencing and gives brief analysis. First of all, the Article Five and Article Sixty-one in the general principles of criminal law in our country are about the principle of penalty in accordance with crime and the prescriptions of sentencing bases, while the Article Twenty prescribe the contents of justifiable defense, over-defense, and special defense. From those prescriptions we can see the shadow of the discretionary sentencing circumstances and a victim's fault. While in the crimes of causing a traffic accident, premeditated murder, manslaughter, injuring others intentionally, unpremeditated crime causing severe injuries, raping, etc. in kinds of offences, no specific and clear prescriptions are made on the influence of a victim's fault to convicting and sentencing, but its contents are absolutely implied in the relevant legal items. Next, the rules similar with the Article Five, Article Sixty-one and Article Twenty in our criminal law can be found in foreign criminal laws such as in Germany, Japan, and Russian. In Russian federal criminal law, the item one (8) of Article Sixty-one of "the circumstances of reducing penalty"even prescribes directly that "crimes caused by the illegal acts and immoral acts of the victim". The prescription makes a victim's fault become the legal circumstance to reduce penalty; while in the prescriptions of kinds of offenses, Germany criminal law contains contents of "murder out of indignation"and "murder based on demand". The Russian federal criminal law also has prescriptions about "crime of murder out of passion", "crime of severe or medial injuring health under passionate state", "violating the inviolability of sex or crime of individual's sex freedom", which directly or indirectly embody the contents of a victim's fault. And because of the huge fault of the victim, the criminal can be given a large extent of reducing penalty. The third chapter is about the classification of a victim's fault and its influence to sentencing, which is the key part of this article.For the classification of the victim's faults, at first it is the classification of victims in crime science. According to the fault of the degree of victims'responsibility, it can be classified as innocent victims; victims of equal degree of fault and responsibility, victims of bearing responsibility, which can also be divided into inducing victims and victims with negligence; guilty victims, which can also be divided into attractive victims and hypocritical victims. Secondly, it is the classification of victims in criminal law science. According to the responsibility of victims in crimes, it can be classified as victims without responsibility; victims with responsibility, which can also be divided into victims with responsibility less than offenders, victims with responsibility equal with offenders, victims with responsibility more than offenders, victims with total responsibility. Then it is several classification of victims'faults in criminal law science, such as major fault, minor fault, no fault; guilty fault, severe fault, common fault; fault violating criminal law, fault failing to exercise civil obligations, fault violating social public morals; fault violating administrative law, and so on. This article advises to classify victims'faults by the way of "two combinations". First: guilty fault. It means that the fault acts of the victim have reached or are about to reach the degree of crime. They correspond with justifiable defense, over-defense, and crime out of revenge, exception with no guilt or fault for criminals or acting individuals. Second: severe fault. If the offender commits crime because of being insulted, persecuted, or out of passion, being provoked, or under the condition with defending factors, the victim should be judged as committing severe fault. Third: common fault. It means that the victim bears liability on the cause of the case or intensifying the contradictions. For crimes caused under the condition of civil, commercial, marriage and family disputes or crimes provoked under the condition of criminals'fault or the seduction of bad acts, the victim should be considered as committing common fault. Fourth: no fault (including minor fault). Identify victims'faults and the sentencing of a criminal's penalty. Based on the classification of victims'faults, the whole sentencing work can be finished with the combination of other legal, discretionary sentencingcircumstances. With premeditated murder, injuring others intentionally as main types, consulting six real cases, and applying the method of case analysis, this part of the article shows the identification of a victim'fault in a case, and the influence to the sentencing of criminals (aimed at the condition of victims with severe faults and common faults). Give full play to the function of the victim's fault circumstances in sentencing. One is how to ensure to bring the function of the victim's fault into play when multiple legal discretionary circumstances exist together; the other is how to ensure to make use of the function of a victim's fault in each sector of criminal procedure. Discuss the legalization of the circumstances of victims'faults. Consulting and following to systems in German and Russian federal criminal laws, under the current criminal law system of our country, and using the crimes of premeditated murder, injuring others intentionally as examples, the article puts forward the following assumptions: add one article after Article Sixty-one in general principles of criminal law,namely, "in crimes with victims, if the victim bears huge fault for the cause of the crime, the offender's criminal liability should be reduced according to the fault of the victim". Add item two in Article 232 in kinds of offences, that is "if the offender performs passionate murder, murder out of indignation under the state of extremely excited due to the acts of serious stimulus, provocation, persecution, threatening, etc. the penalty can be slight or reduced". Add item three after the Article 234, which is "if committing the former two crimes and the victim has huge fault, the penalty can be slight or reduce".
Keywords/Search Tags:Sentencing
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