Study On Victim's Fault In Application Of Sentencing

The victim's fault refers to victims' deliberate behaviour which is immoral and can directly induce or intensify criminal offender to crime,and also influce the sentencing to the criminal.This sense of the victim fault not only have quality demand,as well as the amount of demand,it only an effect on the defendant's sentencing.The victim fault has three characteristics,misbehaved which also means illegal or immoral ? relevance between misconduct of the victim and crime of the criminal offender,And the crime of pertinence.According to different standards of classification,victim's fault can be devided into several different kinds.In practice victim's fault is wildly used in sentencing,but the judges have different statments to it.For the judges,they have variety of reasons to adopt or not.And there are three reasons for that,lack of standards?misreading of the criminal policy?blind obedience of social effect.There are basis of the criminal law for the victim's fault to be circumstances of sentencing,The provisions of article 5 about the principle of adaptation of crime ?responsibility and penalty,article 62 about sentencing according to regulations,and article 20 of the regulation for self-defense and excessive defense,which are the the provisions of the principle for victim's fault according to the criminal law.The supreme people's court and the supreme people's procuratorate made specific provisions to victim's fault regarded as circumstances of sentencing about Judicial interpretations to multiple accusations including traffic accident crime?crime of intentional homicide?offence of extortion by blackmail and so on.By analyzing on the basis of victim's fault influencing sentencing theoretically,which are also been defiend as the shared responsibility doctrine and the offenders culpability mitigated.It's easy to find that as the solution principle for criminal case the shared responsibility doctrine is too radical and incosistent with criminal liability's and the basic theory of criminal law which is not being shared by offender and victim.So the offenders culpability mitigated is more reasonable.Victim's fault is the discretionary circumstances of sentencing,which being utilized in practice embodies discretion of the judges.Lots of problems of the appliciton of victim's fault'can be standerdized from three aspects,judicial interpretation compensates for deficiency in legislation to fill the law loopholes;issue reference and unify justice and discretion standard to avoid same cases having different results,strengthen jugdes construction to performance judicial activity.There are two basic rules for the use of victim's fault to obey.Frist,distinguish the differences between victim's fault in criminal law and criminology;position correctly for circumstance of victim's fault.And second,avoid utilizing repeatedly.According to specific case,the criminal offenders can be given a mitigated punishment.If the criminal offenders have Conditions of probation,then they can be applied probation;death penalty can not be executed immediately because of victim's fault.