On The Illegal Effect Of The Victim's Self-trapping Risk On The Perpetrator

The victim's self-trapping risk theory is an emerging criminal law theory based on the research and development of victim science.It belongs to one of the criminal law theories of criminal entity from the perspective of victims.The victim,s self-trapping risk theory refers to the problem that in the participatory crime,the victim realizes the risk and actively enters the risk himself,or the victim is passively aware of the risk,and then,under the joint action of the victim and the actor,the result of the infringement of legal interests is produced.At this time,whether the victim's self-trapping risk behavior affects the establishment of the perpetrator's crime and the reduction of criminal responsibility.In foreign judicial precedents,there have been cases of excluding the establishment of the perpetrators crime by taking the victim's self-trapping risk.Therefore,the criminal law theory community has carried out a series of studies on the legal basis and legal sources of victims' self-trapping risks.The usage of the victim's self-trapping risk theory in the deliberate crimes mainly participates in the interactive crimes with strong interaction.The crime of fund-raising fraud is a typical participatory crime,which provides a unique field for the usage or expansion of the victim's self-trapping risk theory.Based on the crime of fund-raising fraud,this paper analyses the relevant theories of the victim's self-trapping risk,demonstrates its system positioning and applicable conditions within the framework of objective imputation theory,and finally it is amended and applies them in accordance with the current judicial situation in China,so as to reasonably impute the perpetrators.This paper mainly consists of the following parts:The first part,taking the "Wu Ying case" as a specific case,introduces the risk of victims in the crime of fund-raising fraud.In the case where the victim is at risk,the victim's self-determination for the realization of freedom conflicts with the patriarchal criminal law.At the same time,the victim's choice of self-trapping risk seems to reflect the wabandonment" of criminal law protection,and accordingly propose the balance issues between self-protection and criminal law protection,and the following discussion.The second part elaborates the categories and classification criteria of the victim's self-trapping risk theory,the conditions for the establishment of the victim's self-trapping risk situation and the main points of the victim's self-trapping risk exclusion.The victim's self-trapping risk theory provides a judgement basis for the victim*s self?trapping risk behavior,and provides the theoretical basis for the actor,s criminal responsibility.According to the classification of self-infringement or other infringement,the victim's self-trapping risk is divided into:dangerous participation and danger based on the other.The victim's commitment and self-trapping risk are two different behavioral structures.The victim's commitment is a general agreement with the behavior and the result,however he victim's self-trapping risk is just the acceptance of the risk behavior.So neither of them can properly solve the series of questions about risk.The self-responsibility theory is the same as the legal philosophy foundation of the victim's self-trapping risk theory,and both are the realization of self-determination power.In criminal law,everyone needs to take responsibility for the results in their own field of behavior.This is also the case when the victim is in danger.Therefore,the self-responsibility theory can solve the criminal liability problem of the victim's self-trapping risk.The victim's self-responsibility theory is the discussion result under the framework of objective imputation.On the premise of objective imputation,the victim's self-trapping risk is explored The victim's self-trapping risk theory should be positioned to exclude the constituent elements.In the dangerous participation of the victim,the intervention of the victim dominates the occurrence of the actual result of the crime.The behavior of the actor does not conform to the constitutional elements of the criminal establishment of the crime,thus negating the establishment of the crime of the actor;In the danger based on the other,the victim's intervention behavior and the behavior of the perpetrator jointly caused the occurrence of the actual harm,and the risk created by the perpetrator was realized.In this case,in principle,the illegal behavior of the behavior cannot be ruled out,and the victim's self-trapping risk situation is taken as the basis for constructing the criminal attribution path.However,if it is determined that the victim has superior cognition and dominates the occurrence of the actual result,the act of the perpetrator should be denied.In the third part,combined with the judicial practice in our country,the victim,s self-trapping risk theory is revised and applied,and the basic conditions for applying the theory are put forward to promote the victim's self-trapping risk theory into other suitable types of crime.In the process of re-processing the Wu Ying case by using the victim's self-trapping risk theory,the victim's self-determination power is composed of two aspects.On the one hand,it is externally restricted,and evaluated by the criminal law;On the other hand,it is inherently restricted by the actor.Both requirements must be met at the same time,otherwise the actor will not be recognized in the exercise of self-determination.Besides,it is pointed out that the victim's self-protection possibility is a false proposition.The criminal law protection is necessary for the potential victims when they face the legal interest violation behavior of different risk levels and choose to accept the risk behavior with less safety factor.The behavior should be incorporated into the criminal law evaluation.The revision of the victim's self-trapping risk theory should introduce a new theory of liberalism on the basis of traditional patermalism,expanding the invisible restriction on the freedom of victims,actively pursuing the realization of individual freedom,and form a kind of"liberal paternalism".The main content of the amendment to the victim's self-trapping risk theory is that the applicable areas of different levels are classified according to the individual characteristics of the victim:the fraudulent behavior occurring in the lower level of the hierarchy,the less likely the possibility of applying the victim's self-trapping risk theory;While the victim's self-trapping risk theory should be firstly considered to be used for evaluation the fraud that occurs in the higher level of the hierarchy.Among them,the behaviors that occur in the field of speculation are not subject to criminal law evaluation in principle,but for the case where the deceiver has speculatively concealed the purpose of fraud,it should be determined that the behavior of the perpetrator is fraudulent.The applicable conditions for promoting the victim's self-trapping risk theory are:the actual result of the victim has occurred,the actor and the victim jointly caused the actual result of the injury,the risk of the victim's acceptance is limited to the personal legal benefit,the victim has a clear risk awareness and the risk content is consistent.And the applicable behavior type includes:participatory,risky,and result.