The Research On Victim's Fault's Influence On Conviction And Sentencing

A large number of theoretical and empirical investigation of Victims of Crime Science indicated, that the victim plays an indispensable role in the process of crime. One of the founders of Victims of Crime Science pointed out that, there exist an interaction between offenders and the victims, and the victim in the criminal process is no longer just a passive object, but a positive subject, and even impact and shape the perpetrators. Since the victim of crime also played a certain role In the act of crime, then the victim should bear corresponding responsibility, rather than let the offender to bear all the responsibility, which conforms to the concept of equity and justice.However, China's criminal law, is no fault of the victim of this sentencing plot made specific provision, this leads to a lot of cases involving the victim fault without considering the victim fault on the influence of the criterions for the conviction, and lead to the consequences of the crime punishment does not adapt. The victim's fault refers to the behavior of the victim has a substantial impact on crime and should be subject to criminal law regulation. In judging whether the victim fault has "a material impact on the crime should consider main body specificity, improper behavior and relevance, affect the degree of severity.The legitimacy basis of the victim's fault affects the criminal responsibility of the sinner reflecting in many aspects:harm-murdered interaction theory constitutive requirements of criminal responsibility and the purpose of Criminal punishment.Treating the victim's fault as a statutory sentencing plot is the trend of The Times, but considering the resistance from all levels of society, more reliable solution is selective, distinguishing legal. Namely, behind the "criminal law" the 61th increase a:"the victim has a general fault, may be given a lighter or mitigated punishment; the victim has a serious fault, shall be given a lighter or mitigated punishment." The victim has a slight fault, still as a condition of discretion to consider, to the discretion of the judge. In addition, in order to meet the victim fault sentencing plot in the judicial application needs, it is necessary to clear through the judicial explanation in "significant mistakes" and "general fault" boundaries; In the sentencing guidelines, unified the victim fault influence sentencing range; Issued guidance case for trial reference for the similar cases; To change the allocation of burden of proof and the burden of proof of fault by the defendant to the victim; Appropriate to lower the standard of proof, the advantage evidence standard and so on way to safeguard the victim fault it must be the function of sentencing circumstances of normal play.