On Formed Elements Of Constructive Consent Of Acceptance In Chinese Criminal Law

Constructive consent of acceptance means in the absence of a realistic promise,law beneficiaries will make promises if they know the truth,and behaviors based on constructive consent of acceptance should not be appraised in criminal law.With the spread of decriminalization of non-criminal and the right to self-determination in criminal law theory,the constructive consent of acceptance has received the attention of many scholars and legislators as a reason for excluding crimes.Some countries and regions will presume their constructive consent of acceptance to be clearly defined in the general provisions of the Criminal Code.Our country's criminal law only stipulates two causes of justification: justifiable defense and act of rescue,and judicial practice has not applied the constructive consent of acceptance to specific cases.Besides,theoretical studies are also inadequate in depth and breadth.Therefore,the author thinks it's necessary to do a deep research on the basic theory of the constructive consent of acceptance,while in order to connect theory and practice,the most important thing is to study the conditions for the establishment of the constructive consent of acceptance.That is,under what conditions can the validity of the constructive consent of acceptance be found.In addition to the introduction and conclusion of this article is divided into five parts.The first part poses a question through the discussion of a case,through the specific case to explore the applicable space for the constructive consent of acceptance as an exception in criminal cases,and it can be concluded that the lack of theoretical research is the main reason for the inability to apply the constructive consent of acceptance in practice.The second part analyses the academic controversies on basic theory and essential elements of the constructive consent of acceptance.Besides,it clearly presupposes the type of concept of the constructive consent of acceptance,the status of the system in criminal law,and its justification.This part also reviews the specific doctrine of the constructive consent of acceptance.The third part discusses some related practices about the constructive consent of acceptance overseas,and from these practices we can get some useful experience.The fourth part puts forward the reconstruction of the formed elements of constructive consent of acceptance from the perspective of the right to self-determination.It discusses the specific construction of the constructive consent of acceptance based on the right to selfdetermination as a theoretical guide,and it also discusses in depth the specific issues involved in each element.The fifth part discusses the specific application of the presumption of commitment.It mainly discusses the specific application of the constructive consent of acceptance in several typical cases,such as medical behavior,passive euthanasia,and illegal intrusion into other people's houses.