Study On The Constitutive Elements Of The Consent Of Victims In Tort Law

The consent of the victims originates from the ancient legal proverbs “promisednot illegal”. The consent of victims, also known as “the commitment of victims”,“thepromise of victims ", refers to the act of the offenders prior to get the consent of thevictim. For the offender’s behavior does not break the law, he doesn’t have to bearlegal responsibility. It reveals the individual spirit, which leads to the individualfreedom to dispose their property interests and personal interests. It is an importantdefense in tort law. But the tort law has not stipulated the consent of victims, thisarticle attempts from the perspective of the constitutive elements, the consent ofvictims, the analysis and discussion on its composition and controversies.The victims shall have the capacity of consent which is different from the mentalcapacity. Mental capacity which can form the capacity for civil conduct with thecombination with the statutes is the core of capacity for civil conduct. Capacity ofconsent is the understanding ability of the nature, level and the possible result of theirdecision. It emphasizes the intellectual ability and the degree of rationality of thesubject, and it more emphasizes on the problem of bearing the responsibility after thesubject has made the comprehensive rational judgment. For it has no related divisionstandard and it has no the division standard of age like capacity for conduct, the judgeshould make the identification of the capacity of consent according to the specificcase. When identifying the capacity of consent, the victim’s age, intelligence, mentalhealth, life experience and other factors should be specifically considered.The consent of the victims shall be specific and actual, which is that the range ofthe consent should be definite and specific, but not be summarized and generalized,and the object of the consent should conclude both the infringement and the result ofa behavior, but not conclude the risk of uncertainty, for the consent of the uncertaintyof the risk is the risk-taking behavior. At the same time, the consent of the victimsshould be his expression of true intention. It is the consent which is under the freewill and without the force on the mentality and body after the victim fully understands the object, way, level, consequence of the harm behavior.Consent of victims should not violate the provisions and public policy, which isthe restriction of legal order and moral order on the infringement. Therefore, theconsent is invalid when the victim agrees the injurer’s means of violating the law andpublic policy to infringe him intentionally. The law here includes mandatoryprovisions and prohibitive provisions, also including the private law and public law.Generally public policy concludes only violation of physical rights, but not theviolation of property rights, for property rights always not involve public order andmoral judgments.The victims shall consent expressly before the infringement for consenting afterthe infringement or the damage is the abandon of the right of damages. Consentshould be made in the form of expressing in principle. Expressing must be conveyedto be known by others through language or signing and so on. However, it is alwaysin the form of unilateral promise or exception clause. While, implied consent can beadopted under some emergency circumstance. When rescuing the patient who can’tmake consent or someone injured in the physical activities, implied consent should beadopted.