On The Influence Of Victim's Fault On Conviction And Sentence In Traffic Accident Li Yanrong

The fault of the victim has been paid more and more attention by the theoretical circle in recent years,in view of traffic accidents,the possibility of victim's fault is great,and it will be an impact to the conviction and sentence to the driver who take the main responsibility for the accident.So,the victim's fault in the traffic accident should be the common concerned of in theory and practice.However,the existing research mainly remains in the broad sense of victim's fault,the scope is relatively broad,it mainly includes concept,type,characteristics,domestic judicial practice and foreign legal provisions rarely combined with the traffic accident.In judicial practice,because of the special handling of traffic accident,the traffic police department shall determine the liability for the accident,which is the main evidence of the crime in the trial proceeding.According to the provisions of article 2,paragraph 2,of the supreme people's court's interpretation of certain issues concerning the specific application of law in the trial of criminal cases involving traffic accidents(interpretation in this paper),the perpetrator constitutes the crime of traffic accident is also based on the premise of bearing the main responsibility or cause more than three deaths and bear the same responsibility for the accident,as a result,the victim's fault will affect the conviction of the crime of traffic accident.But for sentence,the influence of victim's fault is relatively small,in a few cases,the victim's fault is taken as the consideration of the setence,which leads to disputes among the parties,whatever,it has become an important reason of appeal.To the public,victims are automatically labeled as weak,reversely,the accused seems to have become a heinous person,this simple value judgment of the general public is not conducive to the realization of the crime of traffic accident justice.This paper is based on the application of the victim's fault in the traffic accident and the deficiency of our country in legal regulations and judicial practice,expounding the victim's fault in the traffic accident through the following three chapters,and trying to contribute to the perfection of the criminal law of our country about the victim's fault plot which affects the conviction and sentence.Chapter one introduces the legitimacy and theoretical basis of introducing the victim's fault in the crime of traffic accident.This part defines the victim and the victim's fault in the crime of traffic accident,and expounds the legitimacy ofintroducing the victim's fault based on the basic principle of culpability and punishment in criminal law,the need to protect the legal rights of the defendant,and conforming to the trend of mitigation of punishment and the policy of leniency and severity.The theory of responsibility sharing,reprehensibility reduction and criminology interaction are introduced as the theoretical basis of taking the victim's fault as the circumstance of conviction and sentence in traffic accident.Chapter two studies the influence of the victim's fault on the conviction and sentence of traffic accident crime in our judicial practice,starting from case analysis,the author searched the total number of traffic accidents and the number of criminal cases caused by traffic accidents in the first trial of the courts in 2014-2017 from the national bureau of statistics and China Judgements Online,obtained the influence of victim's fault on conviction in traffic accident.The influence of the victim's fault on the conviction is generally to decide whether the perpetrator constitutes the crime of traffic accident and whether it will enter the trial procedure,that is,the influence victim's fault to the conviction is mainly before entering the trial procedure.Through the 220 traffic accident judgments in 2014-2018,the identification of the victim's fault has little impact on the sentence,however,in many cases,the victim's fault ratio is taken as the basis of the defendant's civil compensation.In the second section,the causes of less application of the victim's fault are analyzed,they mainly include the absence of laws and regulations,the bias of judicial personnel,the difficulty of collecting evidence and so on,and analyzed the problems have been reflected about the less applied of victim's fault,including shaking the principle of adaptation of culpability and punishment,the negligence of the victim's fault,it is possible to have different sentences for the same or similar cases,and the excessive influence of social public opinion on the trial results.Chapter three firstly proposes several specific measures to optimize the judicial practice according to the existing provisions,so as to realize the introduction of the victim's fault into the conviction and sentence in traffic accident.However,the problems proposed in this paper cannot be completely solved through judicial optimization alone,to achieve the standard application of the victim's fault affecting the conviction and sentence,the ultimate measure is to legislate it into criminal law.The author studied relevant legal provisions and judicial precedents outside the region,summarized the mode selection,then takes the overseas provisions as reference,putting forward specific suggestions on the setting of relevant legal provisions in China.