On The Influence Of The Victim's Fault To Criminal Liability

A victim's fault is one of the discretionary circumstances of sentencing in China. As for the impact on sentencing of the victim's fault, scholars always learn from western theories directly, and they take shared responsibility theory to explain how the victim's fault may influence responsibility and principle of sentencing, which accounts for a large proportion. However problem still exists in this model. It should be made clear how to understand the criminal responsibility when we study the influence of the victim's fault to criminal liability. The eastern and the western have different points of view on criminal liability which may result in the difference of the explanation of the model. Although what they think may be same, which means them all believe the victim's fault can eliminate or lighten the responsibility of the criminal. In this thesis, only the latter one is discussed. Considering the victim's fault trough the theory of criminal law, it is determined that the victim's fault is only considered within the scope of the evaluation of the responsibility for an offence, which exists as the impact of the subjective elements of the responsibility to the people. Through elaborating the principle on the influence of the victim's fault to criminal liability, the aim of this thesis is to clarify the misunderstanding of the issue; through the research of foreign theory and legislation, it tries to explore whether the circumstances of victim's fault should be legalized. The whole thesis can be divided into four chapters besides introduction and conclusion.Chapterâ… : Definition of the victim and the victim's faultIn the criminology, the occurrence of crimes will no longer be a simple people-centered matter, but an unfortunate incident between the criminal and victims, when the crime was placed in the ordinary social interaction theory. We define the victims in a narrow sense, which refers to a person whose legitimate interests is directly affected by crime in the process of crime. And they need to be the parties of criminal cases. The victim's fault referred to is their own negligence and errors which arouse in crime, and its role is to promote criminal motives or to strengthen the criminal motives. In the field of criminal law on victim's fault, its main significance lies in the impact on the criminal liability. The victim's fault will not be considered by criminal law until it is serious enough to affect the criminal liability. In specific circumstances, the victim's fault certainly affects the existence and the extent of liability, but in the sense of the criminal law, victims should be responsible for their own mistakes which does not have an independent significance.Chapterâ…¡: General theory of criminal liabilityWhen talking about the influence of the victim's fault to criminal liability, first we should indicate responsibility from a certain level of understanding, because different theoretical framework of responsibility have different ways in determining the influence of the victim's fault to criminal liability. The eastern and the western are not in the same level of understanding of the nature of criminal liability. Germany, Japan and other civil law countries think the liability is the facts and evaluation of subjective aspects which consists of the crime, but in China the criminal liability focus on the overall evaluation of the crime. As a condition for the establishment of crime, we review the liability from its nature, as well as elements and the significance to sentencing; as a legal result of crime, we explain the criminal liability from its nature and status, as well as the basis and the ways.Chapterâ…¢: The principle of the influence of the victim's fault to criminal liabilityThere are two theoretical doctrine of the influence of the victim's fault to criminal liability, "shared responsibility" and "condemned lowering". The defect of "Shared responsibility" is that it ignores the independence of evaluation system of criminal liability. In the occasion of criminal liability, the principle of mutual restraint of negligence does not work; even victim's fault exists, the evaluation of the offender'liability should be independent of that of the victim's. "Condemned lowering" don't trust that a provocation killings can be as usual murder because the condemnation of criminal is lower. The victim's fault can lighten the offender's liability by the reason of its influence on some elements which may decide the extent of the liability. Moreover, it may lower the level of evaluation of the responsibility. In a condition for the establishment of crime, victim's fault reduces the offender's expectations, so that the offender will be in a uncontrollable state of passion which affects pressure source of the law-abiding motivation, so as the reasons for lightening criminal liability; in a condition that liability is the legal result of crime, the victim's fault weaken the ability to control behavior, thus lowering the ability of the criminal, so as the reasons for lightening criminal liability.Chapterâ…£: Legislative situation and prospects at home and abroad of the victim's fault to criminal liabilityThe fourth chapter discusses legislative situation and prospects at home and abroad of the victim's fault to criminal liability, and explored whether the fault of the victims should be legalized. The criminal liability affected by victim's fault is embodied in legislation as the influence to the measurement of the penalty. As stated above, there is the consideration of responsibility in the measurement of penalty. The level of penalty is in proportion to the level of responsibility, and the punishment cannot exceed the degree of responsibility. As regarding the status quo of the legislation abroad, the punishment on victim's fault can be exerted as sentencing circumstances according to the Criminal Law of the PRC, or be directly decided in the concrete crime with the circumstances of victim's fault, as the description of the concrete situation of the crime. Legislators abroad took the repetitive situation of aggravated liability motive as the reason of legal remission of sentence. This method enhanced the validity of the circumstance of influence responsibility, and reduced the difficulty of judgment and judiciary justice for the judges, thus becoming a good reference for the legislation in China. In the existing system of criminal law, victim's fault can be considered according to the case crime in general principles and specific provisions, so as to show the influence on the measurement of penalty on the criminal. In recent years, concerning the victim's fault, the legislative attitude is vague, and the existing judicial interpretation is tended to category the victim's fault directly into the articles on the crime of intentional homicide. For example, in article 232 of the Criminal Law, one item is added to the legal issue of homicide:"Crime of intentional homicide committed when the criminal was over exiting mentally, due to the immoral or illegal behavior of the victim, can be decided in a lighter or mitigated punishment."In the judiciary practice, victim's faults as the discretionary circumstances of sentencing is often applied, and the difference of standard in concrete application is great, and as a result affected the achievement of judiciary justice. This is largely relevant to the little research conducted by the theories of criminal law and the vague attitude of the legislators towards this issue."Condemned Lowering", as the foundation of the influence of the victim's fault on criminal liability, proved suitable theoretical orientation for the victim's fault. The victim's fault can lighten the offender's liability by the reason that it has an influence on some elements which may decide the extent of the liability. Only the victim's fault that influences the extent of liability can be noticed by the theory of criminal law. The legislation concerning the victim's fault in abroad is a good reference for China. Yet, when measured on the basis of the existing judicial interpretation and criminal policies, it is advisable to suggest the adoption of relevant articles to the issue concerning the crime of intentional homicide.