Study On System Position And Establishment Condition Of The Criminal Victim’s Consent

The victim’s consent refers to the promise or consent of legal interest subjects when their rights, which they can dominate, are infringed upon. The victim’s consent is that legal interest subjects have their own interests that can dominate, when others infringe upon this part of interests, they show promise or consent. The position of the victim’s consent in the criminal theory system is constantly argued in German Criminal Law field, there are mainly two views "dualism "and "monism". The view of "dualism" is that the victim’s consent should be divided into the victim’s consensus and the victim’s commitment according to types of cases. The victim’s commitment includes the agreement to intentional injury and destruction of property. It negates the illegality. And the victim’s consensus includes other types of cases apart from the victim’s commitment. It negates the deserved constitutional elements. The view of "monism" is that all of the victim’s consent negates the deserved constitutional elements and it does not need to distinguish types of cases. "Dualism" and "monism" not only have different views on system position, but also differ in establishment condition of the victim’s consent. Influenced by German criminal law, Chinese scholars have begun to pay attention to this issue in recent years, but their research papers are not rich enough. So it is of great significance to study the system position and establishment condition of the victim’s consent, and to discuss the establishment condition of several types of cases in the legal basis of the victim’s consent.About the semantic definition of the victim’s consent, the victim’s commitment and the victim’s consensus, through carding the usage of the terms at home and abroad, the "consent" is a broad concept which means the legal interest subject allows others to implement criminal violation on the rights owned by those subjects based on the autonomy rights. The "commitment" refers specifically to the narrow agreement that can negate the illegality. And the "consensus" refers to the narrow agreement that can negate the deserved constitutional elements. The victim’s consent includes the victim’s commitment and the victim’s consensus.By collecting and analyzing the present native and abroad academic resources, the victim’s consent is the reason of negating the deserved constitutional elements, but it is not exactly same as the "monism". The victim’s consent in destruction of property, intentional minor injury, and other types of cases are the reason of negating the deserved constitutional elements. But the victim’s consent in intentional serious injury neither negates the deserved constitutional elements, nor negates the illegality. It is invalid by then, and it is only considered as a circumstance of discretionary sentencing. The act of victim’s consent in murder must be subject to criminal penalties.The construction principle of establishment condition of the victim’s consent is the key part in connecting system position and establishment condition of the victim’s consent. Individual freedom theory can make the victim’s consent justification. People have the freedom to dispose their own legal rights under the certain limitation, which means people should exercise their right of freedom within the limit of the law. That is, people have no freedom to dispose of their lives and injuries, but have freedom to dispose of minor injuries and other legal interests.The system position of the victim’s consent affects the principle of the construction of establishment condition, and it also influences the contents the establishment condition. The establishment condition of the victim’s consent includes seven conditions which are legal interest of consent, consent capacity, consent target, subjective true meaning, consent knowledge, consent time and the behavior within the consent scope.Medical behavior and sports competition behavior have the particularity on the issue of the victim’s consent. Through discussion, the two behaviors can be solved with the theory of the victim’s consent, and those justification basis and establishment condition are different.