On The Victim's Consent In Criminal Law

The Victim's Consent Doctrine is very important in criminal theories system. It has a long history, retrospect to the Old Rome Era. In the neoteric and modern times, Germany's scholars do the best on the research of this Doctrine. In the long and abroad researches, there are many different definitions on The Victim's Consent Doctrine. I think, The Victim's Consent, means somebody who having legal benefits permit some others to invade himself or his legal benefits in due scope in promised manner, if the harmful result is appropriate, that should not be thought as a crime. In the Continent Law System countries, action on The Victim's Consent distinguished two kinds, one can default the crime element, called the related recognizing; the other can default the illegalness, called the victim's consent. This distinction is based on the criminal system in the Continent Law System. In our country, we have the different criminal system, so there are many dissensions in the theoretical field. We can learn from the Victim's Consent Doctrine and introduce into our criminal law, to be as one of the Justifiable Acts regulated in our Criminal Code. It will be helpful to our criminal theory and practice. Many countries criminal code have the provision about the victim's consent. In the theory, the Victim's Consent Doctrine 'justness is based on the Benefit-tradeoff Theory. It is also the reflection of the Self-decision Right in the constitutional law. If we do this, it will not just accord with the modest restraining of criminal law, but also tally with the current of history development. Judge an act based on the victim's consent is not only an important theory range judge, but also need a practical standard. A legitimate act based on the victim's consent should contain those following elements: the victim's rights and capability and will, the consent's content and way and time and recognition, the consent's withdraw, the invader's acts. This is a complex judge, the key point is to see the act is based on the victim's Self-decision Right or not. Considering all the elements, we can realize some of these justifiable acts in practical are based on the Victim's Consent Doctrine. Therefore, for the perfection of our criminal theory and Criminal Code, we suggest, make the clauses about the victim's consent in our Criminal Code, and put these clauses behind Justifiable Acts and Act of rescue clause as an another justifiable act in our Criminal Code.