Preliminary Views On The Essential Elements Of Victim’s Commitment And Its Judicial Application

The study of victim’s commitment has a long history, and after long-term development, victim’s commitment has been expressly stipulated in some countries’criminal code. However, in China it is only developed as a supra-law cause in the theoretical circle, and despite the increasing maturity of the theoretical research of victim’s commitment in our country, the theory is rarely used to deal with cases in the judicial practice. In this situation, it is necessary to study the theory seriously and define its legitimate foundation, in order to make it legal to a greater extent, and then the theory can be applied to practice, to distinguish crime from innocence and determine the legal responsibility, thus protecting human rights and defending society. This article is trying to make comprehensive analysis on the elements that an effective commitment should satisfy, and the influence on conviction and sentencing, on the basis of Chinese and foreign researches. The article includes the following contents:The first section is about the fundamentals of victim’s commitment. It briefly defines the concept of victim’s commitment and classifies it according to different standards, thus making readers form an intuitive cognition. Then it analyzes the legitimate grounds of victims’commitment, which reflect its nature. It also introduces legislation and researches of victim’s commitment in different countries and regions, providing guidance for the construction of the system in the following parts.The second section makes an overall review on the essential elements of victim’s commitment. Only the commitment that meets the conditions can be effective, and can prevent the violation of the law. The conditions include the extent of competence, the subject and object, and meaning expression, and so on.The third section introduces the judicial application of victims’ commitment under certain circumstances. It is divided into two parts from the angle that whether the circumstances are expressly stipulated. The first part introduces the embodiment of victim’s commitment in three expressly stipulated situations. In the second part, there are three kinds of typical phenomenon without express provision including assisted suicide, medical treatment and mutual fight. Through analyzing how victim’s commitment influences the determination on the nature of the three phenomena, and the responsibility identification, it can be concluded that victim’s commitment may bring three kinds of criminal effects, which include the influence on conviction, the influence on discretion of punishment, and no influence.The last section is the conclusion, in which there are suggestions for reference as to let victim’s commitment be legislated.