Research On Measurement Of Penalty If The V Ictim Forgives

Many law case is involving the victim in actual judicial practice, the victim of the different influences the behavior to the perpetrator of conviction, for example, before the crime occurred, the victim promise that in particular crime can be used as a resistance is one of the reasons for illegal, influence on the behavior of the qualitative. That the victim forgives or not after the criminal act also may weigh to measurement of penalty. The victim and the perpetrator concluded the compensation agreement, the punisher who understands a book to court to mitigated responsibility; The victim mood excited and then requires that person sentences to death intense, refused to accept the person of the compensation is a situation in practice common, The victim of the influence of the criminal procedure act increasingly deepen, the urgent requirement for us to the behavior of the victim to carry on the system the research, in order to adapt to the development of social practice. In this paper, we choose the topic about the forgiveness of victim influence of sentencing, from basic concept about the victim to the interpretation of the theory of forgiveness at home and abroad are introduced, the last purpose is stay in introduced victim forgives to our criminal law in the specific system construction, the basic structure is from macroscopic view to microcosmic from abstraction to specific, to look forward to being able to produce contribution to development of criminal science of law of our country and reformation meager strength.Besides the introduction and the concluding, this paper includes four parts.Part Ⅰ have analyzed the victim forgiving the theory background having measurement of penalty significance. The victim position return makes the victim study entering view of criminal law, from" victim revenge" of being founded from class society to the slave society "committing a crime accusing person ", in this stage,victim always has initiative in position in civil suit here, be playing the active role. Since feudalist society, the victim position is come down rapidly, national attention on how to prevent and control crime, the victim’s benefit is abandoned in one side, with criminal reconciliation form the concept of restorative justice things appear, the victim’s position gradually return, at the same time, Crime will no longer be regarded as just for the interests of the state infringement, the view of criminality about state-centered perspective suffer qury, the victim is the ultimate undertaker in the crime. The position return for victim and the confrontation of the view of criminality have provided theory background for the forgiveness of victims, the significance that the victim forgives has got the scholar and taking seriously being practice worker.Part II has expounded the fundamental connotation about the victim forgives. The author thinks that the victim is limited to benefit be derided directly, has direct causal relation natural man or legal entity, characteristics such as being had the objectivity that rights and the damaged law profit legitimacy and Infringement of the rights of directly. The meaning of victim forgives is the natural man or legal entity to the direct encroachment illegal activities, after oneself lawful rights is encroached on, based on him self’s true meaning to the criminal act shall not be prosecuted or let off. The victim forgiveness and time of occurrence of the victim agreed to in addition to different outside, to the influence of the crime is different also. The effect that the victim forgives needs state judicial organ’s ratification, this have the nature difference as settle in private.Part III is discussed the relation that the victim forgives with measurement of penalty and their action be lenient measurement of penalty circumstance effect basis. Measurement of penalty is on building-up person danger composing in reply a criminal act people in the society harmfulness to the criminal act, and the criminal act’s personal risk, Actor in active with the victim after the crime communication consultation behavior showed their personal risk below the ordinary criminals, This behavior also from the side shows its crime society with less risk, so the accord with the principle of sentencing but processing requirements. That the victim forgives measurement of penalty significance effect is that the restorative justice, tolerant of penal code theory, program the subjective, interactions, the above theory fully explain the victim forgive the theoretical basis of sentencing significance.Part IV is the innovation of this paper place, after introduce the legislation of victim forgiveness in the present in our country, author proposes the following:victim forgiveness should be elaborated in the measurement of penalty, according to the legal document of the people’s court sentencing guidelines (trial implementation) legislated by the Supreme People’s Court. Mainly from the forgiveness ability, forgiveness premise, forgiveness connotation and in the special case of victims of forgiveness from the point of view of the system is the system rules.Forgiveness ability is solve the problem of the subject qualification of the victim, the act of victims’forgiveness should match their capacity for doing that:their age、mental state and awareness of the details and meanings when forgiving should be corresponded with their act. Positive forgiveness ought to be mainly applied in the initial period with the precondition of confession, which could prevent the misunderstanding "paid but not be punished" among the common people and remedy the victim’s trauma. Offender’s imperfect confession can also be one of the conditions of the victim forgiveness. Forgive connotation require both the actor and victim have the negotiation. The victim forgives in juveniles criminal case and in death penalty case have special significance, rule of the minor crime is not punishment or the focus of deterrence, but is education and reform, Minor crimes trying to obtain the victim is the process of forgiveness of their own heart baptism, so should the light punishment. The death penalty cases considered the families of the victims or their feelings has been part of the laws of the state approval, therefore, the author suggested that in the death penalty cases if there should be the victim of forgiveness to the criminal have death sentence with reprieve. This also accord with limit to the dealt penalty、penalty wide of the international trend, for our country to abolish the death penalty in the future take a good foundation.