Research On Victim's Commitment

victim's commitment, namely, the owner of the jural right promise his own rights and interests violated by others, so as to hinder the illegality of the behavior. Chinese criminal law regulated the justifiable defense and the act of rescue, but not regulates the promise of the victim in explicit terms. As a result, it was presented as an extra-statute reason to hinder the illegality. Therefore, cases related to victim's commitment can not be determined perfectly in the judicial practice. Accordingly, victim's commitment is worth discussing furtherly both in theory and practice. This thesis tries to arouse more attraction from the theory circle and legislators by researching the system of victim's commitment. Simultaneously, this thesis advocates the promise of the victim being regulated in the criminal code as the deepening in theory research of victim's commitment and solving of criminal justice practice. There are five parts in this thesis.The first part is the introduction of victim's commitment. Firstly, define the implications of the victim in criminal victim and victim's commitment respectively, and reveal their differences in definition. Secondly, to discuss the historical evolution of victim's commitment and the research status both at home and abroad base on the superior point.The second part discusses the legal basis of victim's commitment. Why the promise of the victim can exclude crime and could be the ground for elimination of illegality is all along puzzles criminal scholars. Legal basis of victim's commitment presents a kind of hundred schools of thought contend situation. By analyzing previous issues of victim's commitment, this thesis comes to a conclusion that the promise of the victim becoming the ground for elimination of illegality was mainly because the victim voluntarily abandon his disposable interests. In lack of the necessity of jural right protection, the behavior does not infringe jural right, therefore, the basis of constitutes a crime does not exist. Once the protected jural right is equal to or superior to the damaged jural right, the illegality of the behavior was eliminated, that is the measurement theory of jural right. This part finally discusses the application of the measurement theory of jural right, which provides instruction for judicial practice.The third part mainly discusses the valid founding condition for victim's commitment. This part is the emphasis of the thesis. The valid founding condition mainly include the main condition of the promise, that is, the promisee must be capable for promise. The subjective condition, that is, the intentions of the promisee must be true, free and explicit, the purpose of his behavior must be legal, but the recognition to the promise is not necessary. The objective condition, that is, the behavior of the victim and promisee must be accordance with social correspondence, do not go against with social morality. The behavior pattern condition, that is, the meaning of the promise must be expressed by language and manner to the actor, which includes ostension and implied promise. Time condition of promise, that is, the valid victim's commitment, generally speaking, occurs before or corresponding to the occurring of the behavior, namely, the occurrence time of the result must be exist. The restricted condition of promise, that is, the promise behavior of the obligee can only be the obligee's right to entitle disposes. The precondition of victim's commitment becoming the ground for elimination of illegality is that the founding condition of the promise behavior must be measure up to certain standard. The author will further discuss issues refer to this part as emphasis.The fourth part discusses the constructive promise, mainly about the definition and the features of constructive promise. Constructive promise refers to the victim do not promise when the behavior occur, but succor was implemented for victim's interest, and it was assumed that victim would promise surely if knowing the specific situation when the behavior occur, thus the behavior was acted base on constructing of victim's meaning. The founding condition of constructive promise includes precondition, subjective condition, essential condition, restricted condition and behavior condition.The fifth part mainly discusses the status of victim's commitment in Chinese crime system and its legislative advice. To embody the justice of the criminal law adequately, the author holds that base on the reconstructing of Chinese crime ststem and two conditions of the criminal constructing system, one is criminal objective condition(illegality), the other is criminal subjective condition(responsibility), victim's commitment should clearly stipulated in Chinese criminal law as criminal objective condition(illegality), that is, to be the legal ground for elimination of illegality.