Study On The Problem Of Victim’s Defective Commitment

The victim’s commitment, based on the legal proverbs of “voluntary does not occur illegal” and originated from the ancient Rome law concept. In recent years,The criminal theory of continental law system gradually increase the intensity of attention to the problems of the victim’s commitment, but our research for the theory is still in a marginal place.The victim’s defective commitment is sub-conception of the victim’s commitment, and specifically means that the victim’s commitment is not out of his real and free meaning expression, i.e. the oblige make promise for the fact that the doer infracts his rights and interests existing problem. The problems mainly exist in the subject, time, subjective and object four aspects of the commitment. The victim’s defective commitment which breached his real will is caused by a number of conditions, mainly including the factual commitments based on menace and error. The defective commitment caused by errors included cognitional error of facts and cognitional error of value, and there are six concrete situations such as motivation, object, method, the causality, the personality defect and emergency state in the cognitional error of facts. In addition, the victim’s defective commitment problem also exists in the constructive commitment and the recently new concept named hypothetic commitment. The criminal significance of victim’s defective commitment is based on the victim’s commitment theoretical research, and there is no victim’s defective commitment legislation in our criminal law, only the theoretical research circle considering it as one of the reasonable act other than justifiable defense and urgent danger prevention. To define the nature of victim’s commitment, the judge need to consider other conditions, standing on the objective position of social value, dominated by interest measure theory. The criminal effect of victim’s defective commitment is complex, and we should not treat them as the same but make decisions depending on specific situations.The ultimate goal of theoretical research is to serve the judicial. However, the justice is the premise of the legislation. The law is out of style at the beginning of legislation, and only perfect law can cope with new problems under the new situation. The continental law system countries such as Germany, South Korea and China Macao district have already put the victim’s defective commitment into criminal legislation, but Japan does not stipulate the victim’s defective commitment explicitly in its own criminal legislation. The common law system countries are the unwritten law countries, and the victim’s defective commitment is often considered as the reason of criminal defense. Therefore, its law involves most legal problems about the victim’s defective commitment. Our current criminal legislation does not have the specific stipulation about the victim’s defective commitment. Although lots of crimes are based on respect for victim’s will, the victim’s defective commitment cannot be mitigated punishment or exempted from punishment. Facing the current situation of criminal legislation in our country, we need to establish the victim’s defective commitment principle in general provisions of criminal law on the one hand, and we need to improve the crimes in specific provisions of criminal law on the other hand.