The Defender’s Criminal Responsibility On Condition That Victim Risks Himself

The theory of victim risks himself is an emerging and controversial criminal law field, with the academic exchanging and opening, it becomes a frontier problem when German and Japanese criminal theory has been introduced in recent years. Under this special background, the core of the criminal liability is whether the behavior of the victim will affect the defender’s criminal evalution. The criminal law scholars conduct further study on this issue, and they have reached a basic consensus that the defender is not a crime because of the victim’s risking himself, but the reasons are different. In many theories, self-responsibility of victims is the most appropriate and reasonable.With the development of the theory of the criminal law, the function and value in the entity law of victim acts has been being received extensive attention. Crime is no longer regarded as a fact that defenders against victims merely, but an interactive process between perpetrators and victims. In the traditional theory of criminal law, if the damage is brought intentionally or negligently by the defender with criminal liability, and have a causal connection with the behavior, the defender should take the criminal liability for the occurance of damage by himself. The self-responsibility of victims has changed the traditional mode of criminal law, and focus on the victim, instead of the defender. The key point of the criminal liability is neither the mens rea of intentional or negligent nor the causal connection between the damage and behavior, but the victim should not take the criminal liability. What we must pay special attention is that the victim should take the criminal liability, and the defender is exempted from punishment, because he is not a crime on condition that victim risks himself, and this will lead to the victim suffering the double harm. In order to avoid the punishment imbalance of the criminal law, and influence the law justice, the applicable field and conditions of the self-responsibility of victims must be strictly limited. In essence, the self-responsibility of victims is the realization of self-determination’s freedom, and it shows the respect of the modern criminal law to individual self-determination. As foreign theory, it isn’t studied further by Chinese scholars. But undeniably, there are many cases in the judicial practice. So it’s very important and urgent to strengthen the study of this theory, and derive the beneficial results to guide our practice.This article attempts to deepen the study of the victim in this area, consider the modern criminal law from the parties of offenders and victims, advocate treating the victim and defender fairly, maintain the impartiality of the law and the authority of the judiciary, and then guide people to make a better choice, strengthen the consciousness of people’s responsibility for themselves, urge the actors to behave cautiously, and make the self-management more scientific.