Research On The Legislation Of The Victim’s Fault Plot

The criminal law theory system was built on the basis of the"nation-offender" binary structure in our country because it wasinfluenced by traditional criminal law concept, the offender was the centerof the criminal penalty discretion, the victim was rarely focused on, thevictim’s fault was in the neglected state, however, where there is thedirect victim and the interactive significant criminal cases, the victim isnot always completely innocent, the victim’s fault has a substantialinfluence on confirming the offender’s criminal responsibility. Therefore,it is urgent that we should change the traditional concept of criminal law;make the penal discretion based on the objective and neutral position of“murder–harm” and stress the study of the victim’s fault problem.This thesis selects the victim’s fault which is the sense of criminallaw as an entry point. The victim’s fault refers to the victim is one of theconduct of existing the subjective fault and implementing a misconductinfringed upon the offender’s legitimate interests and enough to cause theoffender to commit crime. Many countries make the victim’s fault as aclear regulation which is a statutory sentencing circumstance in theContinental law system or Anglo-American law system, this is conduciveto accurately cognize the offender’s criminal responsibility and regulatethe implement of the discretionary circumstance of measurement. While inour existing criminal legislation, we did not make it as the statutorycircumstance of measurement clearly, only as a discretionary circumstanceof measurement, so this lead to the emerge of the embarrassingphenomenon sentencing imbalance,“different punishment with the samecase” in the judicial practice, so to rise the victim’s fault to the legalcircumstance measurement is particularly urgent. The victim’s fault intolegal circumstance measurement has its basis. our country advocates thecriminal policy of tempering justice with mercy, the principle of suitingpunishment to crime and the guiding principle of measurement ofpunishments and the need of preventing crime provides the theory basis;The victim’s fault into legal circumstance measurement has the coincidences or reflects in our legislative, judicial interpretation, rulesand the reference in extraterritorial legislative cases; The demand ofsentencing standardization and many typical cases of the victim’s faultinfluencing sentencing in the judicial practice provides the practice basis.So, in order to accurately define the criminal responsibility of theoffender, we need drawing more mature legislative cases from the outsidecountry or region based on the traditional criminal in our country,legalizing the victim’s fault as soon as possible and taking the model ofcombining the general principle and specifics in legislation. Specifically,we should set or change the related articles of general provisions andspecific provisions of the criminal law. At the same time, we revise orintroduce the victim’s fault into the damage compensation system and theState compensation system so that the victim’s fault can be specificallyapplied, thus realize the goal of the accurate conviction and thepunishment justice.