Research On The Plot Of Criminal Victim's Fault

The criminal victim's fault is that before the crime against the infringement, victim based on intentional or negligent mind on the illegal or immoral implement, leading to the result of caused the crime happened or intensify contradiction, aggravated the criminal, sufficient to judge the impact of the crime and the sentencing, act to have a substantial effect on crime. The victim's fault have five characteristics, the subject of the fault is only the victim itself, but not the other person. The occurrence time of the fault of victim behavior can be as early as criminal acts can also happened in the process of the crime. There is a certain relevance between the victim's fault behavior and the occurrence of the crime. In addition, the fault of the victim must be serious that can be affect the criminal sentencing. According to the different degree the victim's fault, the victim's fault can be divided into three types of general fault, the major fault and the complete fault.For the theory of victim's fault influence on sentencing, scholars have different theories and views, which shared responsibility theory and the condemning reduction theory are the most typical. The shared responsibility theory emphasizes that victim's fault is one of the reasons of the crime, victim's fault behavior and the criminal offence contribute to the crime together, so a part of responsibility can be shared by victims. But the meaning of the responsibility is not clearly, which lead to the chaos of the judicial application. The condemning reduction theory claims that the criminal's subjective vicious and social harmfulness can be reflected by victim's fault, so the more of the subjective vicious, the less possibility of the reduction of the blame, but this kind of reflection is unilateral. We should apply this two theories together, on the one hand, make up for the deficiency of the theory of responsibility sharing in subjective malignant of the crime and lack of subjective evaluation. On the other hand,it also solve the embarrassment and difficulty of the application of the theory of reducing the blame on the victim's fault behavior and the result of the crime.Compared to the foreign countries provisions of legalizing the victim's fault, there is no provisions on the victim's fault. But the general principle of sentencing require that we should according to the crime plot and the degree of social harm to punish criminals, the basic principle of suiting punishment, the relevant judicial interpretation and the Supreme Court's document of victim's obvious fault or directly responsible for the contradict can be a argument for not be sentenced to immediate execution. To apply the plot of victim's behavior should follow the rules comprehensive consideration and avoid duplication. Our victim's fault location for the discretionary circumstances of sentencing have a lot of problems in judicial practice, such as judges in a large number of criminal imbalance, the standard is not unified, operation problems of law.In our country the victim fault plot legalization is necessity and feasibility, victim fault legal circumstances have important significance on the limit the discretion of the judge, crime prevention, protection of the rights of the crime and the limit of the death penalty. And China's ancient legislative spirit, China's legislation also provides the possibility of the victim fault plot. This paper argues that add a paragraph of the fault of the victim's concept and the principle of sentencing in our country general Provisions Article 61. According to the extent of the victim fault can be the crime, be given a lighter or mitigated punishment. In the specific provisions of criminal law in the strong interaction, most prone to victim's fault and the victim behavior is complex of intentional homicide and intentional injury crime, increase the supplementary regulations, the fault of the victim in the case of the provisions to the provisions. In addition, changes of investigation trial thinking, strengthen the judicial interpretation can provide judicial protection of the apply of the legal plot of criminal victim's fault...