Research On The Theory Of The Consent In Criminal Law

This paper researched the basic theory of consent in criminal law,summarized the consent of connotation and denotation on the basis of thediscrimination of related concepts such as consent commitment andagreement. In this paper, consent will be divided into ten types. I willraise the five basic points and eight elements of the consent in the paper.On this basis, I consider in-depth study on theory of consent have at leastsix great significance for the development of criminal law.This paper is divided into four parts:The first chapter is an overview of system origin of consent andimplications of the definition. I examine the three angles from thehorizontal, vertical, and the reality of consent. For the connotation ofconsent, I believe that we should understand consent from one dimension,two perspectives, three distinguish and four levels. Called a dimension,that is, from the dimensions of the Criminal Jurisprudence to be studied,consent should be seen as a criminal law issues and not just as a penalcode issues in the research. The so-called two perspectives, means weshould not only study the consent itself, but also study the implementthe behavior of the consent. The so-called three distinctions, includea distinction between the consent and commitment, a distinction between consent and agreement, the distinction between rights holders and thevictim. The so-called four levels, means we should study consent in thebroadest sense, broad, narrow, and the most narrow understanding fourlevels.In chapter two, on the basis of the first chapter I raise five basicviews about the theory of consent. First, the generation of the consentsystem, experienced the development from scratch, from laissez-faireattitude to the progressive restriction of the process; Second,"consent"system generated by the revival of the Western Roman law and the ensuingsector law movement, the impact of the theoretical foundation derived fromthe classical political philosophy citizens sole discretion, theexpansion of the autonomy theory of civil law in the Penal Code; Third,"consent" theory has been witnessed the embodiment of the Victimology andCriminal Law interact with each other; Fourth, several cases of theexistence of consent and several relationships between the consent andthe elements of crime; Fifth, the theory of consent highlights theimportance and the guiding significance of the concept of legal interest.Then consent will be divided into ten types: the consent of the countryand the consent of the individual; the real consent and the presumedconsent; the consent of the natural person and the consent of the legalperson; the prior consent and the consent expost; voluntarily consent andforced consent; valid consent and invalid consent; the consent of thepunishment and the consent of the non-punishment; the consent of thenon-crime and the consent of the crime; the consent that negates theelements of conformity of the act and the consent negates the illegalityof the act; the consent belong to the elements of the crime and theconsent not belong to the elements of the crime.In chapter three, I analyzes the constituent elements of the consentfrom the right holder and the actor two perspectives, including the premise of the consent, the expression of the consent, the time of theconsent, the manner of the consent, the object of the consent, the scopeof consent, the awareness of the consent, and the social equivalence ofthe behavior of consent. Then I point in-depth study on theory of consenthave at least six great significance for the development of criminal law:First, according to the consent, the basis of the legitimate groundseriously be thinking; Second, according to the consent, the nature ofcrime seriously be thinking; Third, according to the consent, the conceptand content of legal interest seriously be thinking; Fourth, accordingto the consent, the sin function of the theory of crime constitutionseriously be thinking; Fifth, according to the consent, the status androle of victim seriously be thinking; Sixth, according to the consent,the type of crime seriously be thinking.Finally, there is a brief summary of this article in the last sectionof the full text. This paper may be questioned and criticized, here I givesome initial and brief responses combined with Xu Ting case using thetheory of consent described in the paper.