Study On Standards Of Constructive Consent

With the popularization of the concept of respect and protection human rights inthe field of criminal law, the Chinese and foreign criminal law scholars have drawnwidespread attention to the crime of illegal resistance function argument, Theconstructive consent is no exception.Compared to other countries, which stipulate the constructive consent in thepenal code or as a super regulations of the crime reason. Our criminal law scholarsinsufficiently emphasis on the constructive consent. They often mention it as a part ofthe victim’s commitment, and hardly deal with its’ standards. More importantly, thespecific elements of the definition are divergent. So, it is necessary to construct thesystem of standards of the constructive consent.Start from the basic theory of constructive consent, analysis the domestic andforeign research situation about the standards of the constructive consent Objectivelyand rationally, face up to the defects and deficiencies and base on jurisprudence,criminal law and sociology theory, put the criminal policy of combining punishmentwith leniency as guide. Then, reference the research production of the victim’scommitment, the crime reasons and criminal presumption. I divide the standards ofthe constructive consent into two levels, which are the basic conditions and restrictiveelements. To clarify the emergency situation the possibility of presumption thesuperior interests, and so on, construct the system of standards of the constructiveconsent multi-level and multi angle.In addition, according to the different Legal interest, used the standards in thehealth right. the legal interest of property and personal freedom. In the hope ofenriching the constructive consent theory and guiding the criminal judicial practice.