On The Presumptive Consent

The presumptive consent have not been clearly defined by Chinese criminal law. Moreover, there are a few theory studies relatively about the presumptive consent, and differences on many issues, resulting in judicial practice, the consent associated with the presumptive cases were uncertain. Therefore, the presumptive consent, both in theory and practice are further explored value. This paper attempts to more attention from theoretical circles through the important theoretical studies of the presumptive consent; and attempts to explore the necessity and feasibility of legislation of the presumptive consent, with a view of judicial practice helpful. This paper is divided into five parts to start dissertation:The first part is an overview of the presumptive consent. This is some of the major differences of opinion at home and abroad to explore the definition , status and classification of the presumptive consent. The presumptive consent is that certain rights and interests of the victims face immediate danger, although there is no real consent to the victims, but because of urgency of the situation in order to protect the interests of victims, it can be assumed to know the truth when the victim will certainly make a consent, which by the behavior of the implementation of human behavior based on this presumption. The presumptive consent in Chinese criminal law theory is justified, one of the subject, and only for the victims of the interest of the presumption.The second part mainly discusses the basis of justifiability of the presumptive consent. This part firstly introduces and assesses the various theories at home and abroad, and in the process contrasts the presumptive consent with other similar concepts, including victims of commitment, avoiding of an emergency, without due management were compared. On this basis, the author proposes her own view that includes a method to measure the social benefits of that as a presumption of a considerable consent to justify under the more reasonable. With the general social equivalence that should be discussed only from the concept itself is different from the author more emphasis on the social equivalence contains three elements, namely, the legitimacy of the purpose, means the legitimacy and legal interests of balance, especially if the balance of benefits upper, combined with the concept of social equivalence to dissert the basis of justifiability of the presumptive consent.The third part discusses the conditions of establishment of the presumptive consent. In theory the establishment of internal and external conditions were all-inclusive introduction, the author's dissertation was launched by discussing four conditions of establishment of presumptive consent, namely: first, there must be presumption of an objective state of emergency; second, the victim has the capacity of consent and disposition authority; third, there must be certain possibility of consent of the victim; fourth, the behavior based on the presumptive consent must have the social equivalence. At the same time, the author in her dissertation of the conditions of establishment discusses the right to access in-depth consent of the right to life and good health, saying that the right to life within the limits of the encroachment of the consent is allowed, in certain circumstances, the right to life can also set up a presumptive consent; for good health and rights, legal interests of the main right to enjoy only a limited consent. As for the criteria for determining the presumption, I advocate the use of objective, said that based on compromise.The fourth part analyzes the appliance of the presumptive consent. Analysis of the end-result is the most controversial and most concern issues, the appliance of the presumptive consent in the medical acts as well as in special medical treatment,Death With Dignity. The author firstly introduces medical treatment and Death With Dignity, disserts the justifiability of them. Then discusses the appliance circumstances and the conditions of establishment of the presumptive consent in medical treatment and Death With Dignity: the presumptive consent of medical behavior mainly occurred in patients with who do not have the ability and consent to his guardian or legal representative not in the field, unable to obtain contact emergency situations, as well as in patients with temporary loss of consciousness, can not make a consent to the decision of the case; the conditions of establishment are the same to the general presumptive consent. The presumptive consent in Death with Dignity is for patients who are vegetative station, unable to express their means; this case, the establishment of Death with Dignity must be a presumptive consent from both patients and their close relatives, protectors ,etc.The last part is mainly about the legislation of the presumptive consent in Chinese criminal law, disserts the necessity and feasibility of legislation, and has made specific legislative proposals. Among them, the need for the public and the judiciary, mainly from the perspective of the analysis; while the discussion is based on the feasibility of necessity, as well as self-defense, emergency hedge consistency. On this basis, by combining our existing system of the crime constitutes ,the author advocates that in our existing criminal law provisions of article 21 of the emergency to avoid danger, adds a provision in the form of a separate ,setting reality the consent and the presumptive consent of victims.