Research On Victim's Consent

The victim's consent has a long history in criminal theories system, retrospect to the old Rome Era. Most countries and areas have no specific provision on this subject, only researches it as super-law ground for elimination of misfeasance in theory. The victim's consent has different effects in criminal law; however, it is more reasonable to regard it as the condition of preventing criminality. In the neoteric and modern times, Germany's scholars do the best on the research of this Doctrine. In the long and abroad researches, there are many different definitions of this doctrine. But the most popular one is somebody who has legal benefits permit some others to invade himself or his legal benefits in due scope in promised manner, if the harmful result is appropriate, that should not be thought as a crime. In the continent law system countries, victim's consent can be distinguished as two kinds, one is called victim's recognize, the other is called victim's consent. This distinction is based on the progressive Continent criminal system, which is different from our country, so this theory couldn't be used in China. As a result it leads a great dispute of its definition. Victim can dominate his entire right expert the life right. It's not only the nature of criminal policy, but also the necessity of the practice. In the event of wrong understandings, it is more complex to judge the effectiveness. Various motivations can also affect the effect of consent.Seeing from the present situation, the research on victim's consent is still not sufficient. There has no definite expression of this theory in our criminal law. It will bring great help by studying legal basis and constructive condition of this theory. The victim's consent is presented as an extra-statute reason to hinder the illegality, which has achieved the recognition by most scholars. Moreover, when come to specific case, the judges can't make accurate conclude. So it has great significance to do more work on this subject. This paper aims to arouse the attention of the scholars and legislators then apply in the practice as early as possible. The article divides into five parts besides introduction and conclusion:The first part is the introduction of victim's consent. Firstly, discuss the definition of the theory and the effect of it. It has various meanings in criminal law, and changes with different conditions. Secondly, discusses the historical evolution of victim's consent and help the readers to build an intuitive and clear impression on this theory, which lays the foundation for the following research. The second part reviews the history of the victim's promise, analyzing and comparing the promise from the victim of Continental county, Anglo-American county, and our country. By resolving relate basic questions, could find the regular characteristics to instruct our criminal legislation. Also there has a dispute of in which way this theory can be melt into our law system. In one word, we could referent its principle and spirit in the general part, and absorb it into the specific chapters to enhance the operability.The third part discusses the essence of the victim's consent and the legal basis of this theory. The article analyzes legal basis of both theory and practice from different aspects, such as at macro level, mid-scale level and micro level.The fourth part mainly discusses the valid founding conditions for victim's consent. The establishment of an effective consent includes such conditions:the subject and the object of the consent, the way and the time the promise was made. The consent must be capable for promise, the intentions of the consent must be true, free and explicit, and the purpose must be legal. The premise of why victim's consent is presented as an extra-statute reason to hinder the illegality is the stringent standards of the establishment of an effective consent.The final par discusses the development of this theory in our country. In the process of building a harmonious society, as the more humanity sectors is melt into our construction, a new conception is created, which is called victim forgiveness. After understanding the concept, the feature of this new version, the article will discuss the current file in criminal law which is relative to victim's forgiveness. Our country should do more work on this subject, on one hand can deepen the theoretical study; on the other hand can play the better effect on the practice. It will be meaningful for accelerating the process of building the harmonious society.