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

Criminal law in our country doesn't explicitly define the victim's consent as an act of acceptance.In theory,it is only investigated as one of the other legitimate actions except self-defense and act of rescue necessity.In judicial practice,it is also cannot be defined as the legal effective factors which affact actor's liability.Only as a discretionary sentencing circumstances taken into account in sentencing leads to unbalanced sentencing.New interactive theory that crime results from interaction between the actor and the victim side considers the characteristics of the victims themselves or some of the acts made a large impact on crime.Thus the victim's consent becomes necessary factor to be identified in actor's liability.This paper aims to inllustrate the impact of different types of the victim's consent on actor's liability and the principle of the influence,which is inllustrated through concrete euthanasia behavior.Througe the provisions of foreign criminal law,we will discuss the improvement of legislation in our country.Text is provided into the following sections:First, an overview on victims and the victim's consent.The concept of victim can be used in two meanings ,crime victims and criminal victims.The former is concept of criminology,which refers to the entity being enroached on;The latter is concept of criminal law,which especially refers to the entity suffered in criminal cases. The victim in the text refers to natural person.On the relationship between the actor and the victim,new interactive thory provides a new perspective from the victim side.Crime is not only harming acts unilaterally.The acts that the victim abandons self-interest make effect on actor's liability.The victim's consent has a long history of theory.In ancient China,state power is as the center, the victim's consent didn't have real meaning and effect on actor's liability.With the development of individual standard values and the improvement of legal system,the theory has attracted more and more attention,although not specified in law.The effect on actor's liability is also emphasized ,which is reflected in relevant legislation in judicial practice.Second, relationship between the victim's consent and criminal liability.To study the influence of the victim's consent to criminal liability,the first step is to definite meaning of criminal liability,which is a controversial concept in field of criminal law.In our country,criminal liability is used on the level of the consequences of crime,which is different from the concept of responsibility in civil law.Criminal liability in the paper also refers to the consequences of crime.The paper researches on whether the actor will bear criminal liability and the extent of liability in the presence of the victim's consent. The victim's consent influences the actor's liability by two aspects.On one hand,individual's right to decide freely is emphasized in modern society and criminal law protects freedom.Thus individuals can deal with some of their interest freely,and produces legal effect.On the other hand,criminal law is public law,which determines the limitation of the victim's consent.The actor's liability isn't determined solely by the victim side.The theory on the influences of the victim's consent to liability includes the said of denial, affirmation, condition and distinction.The text agrees with said of distinction,considering that in the presence of the victim's consent ,the actor's liability cannot be gerneralized.It is analized in specific situations,depending on the nature of the victim's consent.Third, the type of the victim's consent and influence to criminal liability.On the basis of the relationship between the victim's consent and the crime, the victim's consent can be divided into type of no impact on crime,type of excluding crime, type of elements of crime and type of reasons of light sentence.There are differences between type of hindering elements of crime and type of hindering illegality in Civil Law .The text mainly pays attention to type of excluding crime and type of reasons of light sentence.The victim's consent becomes factors affecting criminal liability by two aspect.On one hand,the actor's subjective malignant becomes lower in the presence of the victim's consent,leading lower level of liability;On the other hand,the presence of the victim's consent makes low possibility to expect the actor to implement legal acts,and further more influences criminal liability .On the pinciple of excluding illegality,there are said of legal acts,said of abandoning interests,said of abandoning protection by law and so on.The paper considers that the victim's consent excludes illegality by two aspect.On one hand,since the victim has abandoned their interests and the protection by law,criminal law should not interfere.If not,it is against the purpose of criminal law;On the other hand,in a legal system which focuses on the protection of citizens,citizen's right to decide freely under their own value should be ensured.They are unified in measure of interest.Euthanasia has been a controversial problem about whether to pursue the actor's liability.For a hopeless patient who lives with great pain,it is right to end their lives by their request.The topic can be analized by the possibility of expecting the actor to implement legal acts and their subjective aspect and so on.Fourth, the abroad current legislation situation of influence of the victim's consent to criminal liability and the enlightenment to our country.Nowadays, countries have different definition of victim's consent in their legislation. The paper here introduces the related definitions in Japan, German, America and India. Some nations clearly define no penalty to take disciplinary action according to the victim's consent in their general notice, while some nations in their distributed rules concretely and conditionally define no penalty to consent. Some nations admit presumed consent,some nations rule no dealing until petition in their distributed rules, and let victim decide whether to pursue criminal liability later. The criminal law of China has no clear stipulations of the victim's consent, and the application of discretion on sentence in judicial practice causes disequilibrium for measurement of penalty, severely influencing the judicial fairness. Use for reference of the experience of other countries'legislative experience that post-consent and the deducing promise can be established in some situations, but as for a kind of post-consent to tell the treated criminal can't hinder the criminality of their behavior, for it only exempts the charge of criminal liability. As for our countries'present situation, categorization of the victim's consent and inapplicability in justifiable defense and act of rescue are without requirements in China'general principles of criminal law. The correlation measurement of penalty in general principles of criminal law defines a feasible principles-based standard for the promise from the victim, giving it a certain position in criminal law.