A Study Of Self-endangering Of The Victim

Self-Endangering of victim is a new and controversial issue of criminal law,it originated from German criminal law case and developed in it, now it has achieved a wealth of development results in the German and Japanese criminal law theorists,but the development of our country is still in the beginning stage.As the theory of criminal law has not yet been discussed in detail in our country, the China’s Judicial Practice is lack of theoretical guidance on the related issues of Self-Endangering of Victim. At present the victim since the depression risk related theories more controversial, mainly concentrated prominent and many key problems nobody cares on hot issues in the dispute, such as Self-Endangering of victim exclude illegal evidence and negligence committed use discussion intense and fruitful, and to the victim since the depression risk in crime constitute systematic position of the four elements and the application in intentional crime is rarely covered. In this paper, four parts of the Self-Endangering of victim related theories are introduced, the simple view of the individual:The first part briefly introduces the theory of criminal law in our country and the judicial practice of the victims from the theory of risk and the attitude of the two victims from the risk of the typical case leads to the discussion below.The second part,Self-Endangering of victim classification and standard, the Self-Endangering of victim established the risk conditions and the Self-Endangering of victim risk exclude illegal evidence of main view is simply introduced, and put forward some opinions of the author. In accordance with the “power standard”, there are two types of the Self-Endangering of Victim, Self-Endangering and endangering someone else. But this classification standard makes the classification of Self-Endangering of Victim only has the function of the case typing and does not have the standard significance, because the behavior control theory is blurry, difficult to define and lack of legitimacy. The most controversial Self-Endangering of Victim theory of criminal law researchers is the basis of the exclusion of illegal evidence, the Self-Endangering of Victim theory and Consent of the Victim look the same in some ways, but in fact, they are different. Self-Endangering of Victim as the Consent of the Victim to extend the line is not appropriate; "Control theory" as the classification standard makes the accomplice from the property theory itself is uncertain, and the single system of accomplice, accomplice from the attribute based system does not exist in China’s existing criminal involvement, accomplice from the property as a victim from depression risk elimination illegal evidence is not reasonable;The third part introduces the Self-Responsibility of the Victim principle, interpretative theory basis, and the establishment conditions, problems and used in the specific cases, The self-determination based on Self-Responsibility theory as the basic principle of criminal liability, is a necessary basis in the risk theory of crime victims, starting from a normative perspective, the self responsibility has not been unified interpretation according to the conclusion. Professor Feng Jun proposed the establishment of the Self-Responsibility of the victim "four elements", which is more convenient for the operation of judicial practice, the problems of Self-Responsibility theory such as fuzziness, the author put forward the views and thinking.The forth part introduces the role of the Self-Endangering of Victim in the Constitution of a Crime in the civil law countries is different from our country. Respectively adopted the theory of objective attribution and the theory of Causality, Germany and Japan position it in the constitution of the crime in conformity of important constructive conditions stage and transgression stage to eliminate crime, using the comparatively conservative theory of four requisites to constitute a crime as our country, encounters obstacles from positioning Self-Endangering of Victim in a proper place. Because of this, our country has to use the mode of thinking of victim ’ s consent monism, introducing the constitution elements into the legal interest theory, according to the idea of Self-Responsibility to place the Self-Endangering of Victim outside the criminal circle.