The Consent Of The Victim In Criminal Law Act

The theory of the victim' promise evolved from the legal language "the behavior acquired the promise does not break the law". Modern criminal law theories in every country usually regard it as condition of preventing criminality, especially as justifiability of eliminating misfeasance. Some countries and areas definitely prescribe the victim' promise in legislation, so take it as legal justifiability, such as Italy, Korea, Macao. But most countries and areas' penal code has no specific provision on this, only researches it as supra-law ground for elimination of misfeasance in theory. In our present criminal law, general provision does not mention it, and discusses it as one of preventing social jeopardize besides justifiable defense, necessity. In practice, our criminal theory pays less attention to it and theoretic study is correspondingly inadequate, therefore it has the value of further research.First of all, this article reviews the history of the victim' promise, analyzing and comparing the promise from the victim of different country' related statue and theory in system of civil law and system of common law, for the purpose of distinguishing it. On the basis of this, the article discusses the essence of the victim's promise, and especially focuses on the argument of the victim's promise belonging to "preventing constitutive requirements ", or "preventing irregularity ". I consider that preventing constitutive requirements is consistent with preventing irregularity, so the debate on preventing constitutive requirements and preventing irregularity does not exist in our country. The angle of analyzing justifiability does better benefit to cognizing its essence. Based on grasping its essence, I believe that taking the victim' self-determination right as the foundation of the promise of the victim's excluding criminality corresponds to our criminal legislation and judicatory practice. In the end. the article defines the constitutive requirements of the victim' promise, on the basis of combining the statue and theory in system of civil law with our criminal' s. I consider that many countries have specific provision on the victim's promise in their penal...