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The Research Of The Plot Of Criminal Victim Forgiveness

Posted on:2014-12-09Degree:MasterType:Thesis
Country:ChinaCandidate:Y SuiFull Text:PDF
GTID:2296330425979519Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
The party reconciliation in the proceedings of the public prosecution established in thecriminal procedure law presents a challenging task to the research of criminal law, thecriminal victim with its striking way going to the front of the stage of the research of criminallaw. The criminal victim is the subject of eternal existence but often ignored in criminaldisputes, the criminal victim advice is excluded the framework of solving the criminal dispute.Criminology、 criminal procedure law and other criminal subject focus on the victimsustaining warming, so more highlights the neglect of criminal victim in the research ofcriminal law. Under the background of academic research of criminal integration, the shortboard in the research of criminal law cause the difficult of the system implementation in othercriminal disciplines. It is because of the lack of the plot of criminal victim forgiveness in theresearch of criminal law, the rules of influencing the conviction and sentencing of thedefendant in the parties reconciliation program is not clear to find the basis of substantive law.The plot of criminal victim forgiveness as a circumstances after a crime, for its systematictheory study is unavoidable.The purpose of this paper is to through combining with the text analysis and empiricalresearch methods, the “rationality-theoretical orientation-judicial cognizance”ofintroducing the plot of criminal victim forgiveness to the theory of criminal law as the processlogic research, and systematically analysis and comb the plot of criminal victim forgiveness,to peep the whole plot of criminal victim forgiveness in criminal law, to solve the problems inthe judicial practice, and to frame the bridge for the coordinated development of the criminalsubject.In this paper, besides introduction and conclusion, the text is divided into four parts:The first part mainly analysis and definition the concept of criminal victim、forgiveness,and based on this, advances the concept of criminal victim forgiveness. Theauthor thought the criminal victim forgiveness is a kind of judicial practices, and is a kind ofrational behavior, and is the legal behavior influencing on the conviction and sentencing of the defendant. at the same time, the criminal victim forgiveness with the concept of criminalreconciliation, restorative justice are distinguished, the author thought criminal reconciliationand criminal victim forgiveness is the nature of different parallel things, the criminal victimforgiveness is the ultimate goal of restorative justice. Finally, on the basis of forgivenessreason、forgiveness time、the degree of forgiveness, divide the type of criminal victimforgiveness, in order to research the plot of criminal victim forgiveness.The second part mainly analyze the theoretical basis of introducing the plot of criminalvictim forgiveness into the criminal law theory, spread out from the three aspects of necessity,possibility, and fitting with the theory of criminal law. In the introduction of the necessityanalysis, in criminal policy dimension and the victim study dimension, criminal procedurallaw dimension, social and ethical dimension four aspects, investigate the demand for the plotof the criminal victim forgiveness in criminal law. In the analysis of practical possibilitiesfrom the view of Criminal Law Center, the victim’s interests demand, the development trendof criminal law three directions to dig its potential. Finally, analysis the plot of criminalvictim forgiveness with the value orientation of criminal law, the purpose of punishment andcriminal law to investigate it fitting the criminal law’s related theory.The third part mainly is to know the function of the plot of criminal victim forgivenessand its reasonable position in criminal law theory, and put forward the perfect path in thecriminal law. Firstly, put forward the argument innovatively of the plot of criminal victimforgiveness having conviction function, and through analysis the plot of criminal victimforgiveness having unique nature that is different from other sentencing plot, as well as thetheoretical basis of criminal victim forgiveness from sin. Secondly, through the limitapplicable death penalty、the probation applicable、exempted from criminal punishment、community correction four aspects to discuss the realization of the less function of the plot ofcriminal victim forgiveness. Finally, The author thought the plot of criminal victimforgiveness should be increased to legal circumstances, and by adding one of article61andthe one of37to legalize.The fourth part mainly introduce the judicial status of criminal victim forgiveness, analysis the problems in the judicial practice, discusses the judicial cognizance standard.Through the empirical study, the plot of criminal victim forgiveness has20%of the relevantcriminal cases, and has an obvious tendency of felony、concentration, has become animportant mitigating circumstances in judicial practice. At the same time, also noticed thatthere exist the lack of specification、loss of the sin function、the lighter not standard, and manyother problems in the judicial practice.Finally, the author put forward judicial cognizance ofcriminal victim forgiveness from six aspects of the defendant pleaded guilty attitude,forgiveness subject qualification, forgiveness meaning truth, forgiveness time limit,forgiveness content clearly and forgiveness security requirement, so as to ensure theauthenticity of criminal victim forgiveness.
Keywords/Search Tags:The criminal victim, The criminal victim forgiveness, Convictedfunction, Sentencing lighter function, Legal, Judicial identification
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