A Study On The Criminal Law Boundary Of The Victim’s Right To Self-determination

As a cause of violation of the law,the right of self-determination of the victim is a rich proposition hidden for a long time with the consent of the victim.The development of victim science has raised the value of the normative significance of the victim’s right to self-determination,its content,and the source of the victim’s right to self-determination.Thinking.The right of the victim to self-determination has been discussed more in German and Japanese criminal law theory.In recent years,China’s discussion on the right of the victim’s self-determination has also gradually developed and flourished.However,the relevant doctrines of the right to self-determination of the German and Japanese victims have become “unconvinced” in China.It is mainly manifested in the origin of the right of the victim’s right to self-determination,the realization of the victim’s right to self-determination,and the position of the victim’s right to self-determination in the criminal theory system.However,both the theoretical foundation and the position in the criminal theory system are inconsistent with China’s current criminal law regulations,which not only leads to confusion in academic research but also brings great confusion to practice.However,in the shout of the localization of law development in China,the research on the right of victims’ self-determination should also work in this regard: the right of victims’ self-determination is actually the right of the victims to decide and punish their own legal benefits.This right is also the protection of victims by criminal law.The extent of the problem;China ’s localization advantage lies in the fact that criminal patriarchy in traditional legal culture is both a resistance to the victim’s right to self-determination—because the victim’s right to self-determination does not arise here,it can also be the driving force for the development of the right Because of the various inconveniences caused by the intervention of paternalism in traditional law,the legitimacy,urgency,and demand of victims’ right to self-determination are even greater.Therefore,the localization of the right of the victim’s self-determination in China should first clarify the research status and practical dilemma of the victim’s right to self-determination,and then analyze the reasons for the dilemma of the victim’s right to self-determination transplanted into China.The foundation of legal culture,and finally,a localized analysis of the principles,fields of application,and methods of realization of victims’ right to self-determination.The full text is more than 46,000 words,mainly including the following four parts:The first part: research status and localization dilemma of victims’ right to self-determination.Through the analysis of the theoretical research status and practical dilemma of the victim,it is found that the research on the right of the victim’s self-determination adopts "fetching doctrine",the content of the victim’s right to self-determination is unclear,the position of the victim’s right to self-determination in the criminal theory system is unknown,and the victim’s right to self-determination is in life and body.The application of health,property,personal information and other fields are controversial,and the existing criminal law in China faces the academic theory of the right to self-determination of the victim,which cannot answer the above confusion of "imported" victims’ self-determination.In judicial practice,the separation between doctrine and judicial practice has intensified.Judicial practice still gives victims absolute protection in accordance with traditional criminal law paternalism,while ignoring the autonomous right and realistic need of victims to punish their own legal benefits.The second part: analysis of the cause of the localization of the victim’s right to self-determination.First of all,the traditional law paternalism in China advocates the protection of victims ’rights by criminal law,and there is no theoretical or practical space for victims’ right to self-determination.With the inheritance of the legal tradition of rites and rituals,the influx of western civilization triggered the awakening of individual self-awareness,and the law began to attach importance to the rights of individuals to equality and freedom and the relationship between individuals and modern nations.The introduction of the right to self-determination of victims further places the relationship between the victim and the perpetrators and the relationship between the rights of the victim and the state power on a platform for extensive discussion.Secondly,although the development of modern medicine has cured a large number of diseases and delayed life expectancy,there are still problems that cannot be overcome by medicine.The medical dilemma has exacerbated this conflict,making the "euthanasia" of the specific application area of the victim’s right to self-determination a reality.problem.Finally,changes in the times have exacerbated social risks and allowed victims to expand their self-determination: cyberspace has greatly expanded people’s areas of activity,but also brought social risks.Victims ’self-adventure in the field of risk has further damaged the rights of victims and further stimulated criminal law.Thinking about the limits of victim protection.Regrettably,in the process of China’s localization,the victim’s right to self-determination has not yet found a doctrine system that suits him.The dispute between theexisting criminal component system and the criminal law system of the civil law system continues,which is not only reflected in the academic community’s call for changing the criminal component of China.On the basis of the system,the systematic position of the victim’s right to self-determination is constructed,and it is reflected in that the theory of the victim’s right to self-determination has not yet faced China,answering China’s questions,and solving China’s judicial problems.Part III: The cultural basis of the localization of the victim’s right to self-determination in China.First of all,the traditional Chinese legal culture is a combination of Confucian culture and law,which is the "Long Li Zhi Fa".The combination of etiquette and law is not only reflected in the "li" as a big law in people’s minds,which guides people’s understanding and practice of the law,but also in the relevant provisions of the law on the "ceremonial law" and the implementation of the "non-litigation" and people-oriented thinking.Secondly,the patriarchalism of the traditional Chinese criminal law has been impacted by the western criminal law culture.As a result,Chinese law has abandoned the need for traditional legal culture to change and transitioned to a rational modern law.However,it still retains the habit of traditional criminal law patriarchy.Finally,there is still room for the victim’s right to self-determination on the basis of the combination of traditional legal culture and modern legal systems.The first is to modernize the interpretation of criminal law paternalism,showing that criminal law paternalism does not blindly protect victims,and more importantly,rational thinking.The criminal law respects the self-determination of children in the capacity of parent;secondly,through the modern interpretation of the people-centered thought,thinking about the relationship and boundaries between the public power of the criminal law and the private rights of the person,providing the source for the transfer of some private rights by the patriarchy of criminal law Explanation;The third is through the modern application of the "no litigation" ideology,mainly thinking about social stability and the exercise of individual rights,showing that the victim’s right to self-determination is still in line with the law’s essential tenderness and the reality of social joint relations.The fourth part: the localization of the criminal law boundary of the victim’s right to self-determination.Firstly,through the modern application of the idea of "careful punishment" in the traditional criminal law,implement it into the last resort principle of the criminal law,and clarify the application of the last resort principle of the criminal law to criminal actors,victims of the crime,and the relationship between the two.Legal interest is the basis forjudging the realization of the victim’s right to self-determination,and in the case of respecting the victim’s self-determination,adopting conservatism over the victim’s self-determination is a choice that respects history and reality.Secondly,in the legal benefit of victim self-determination,the rules of victim legal self-determination are as follows: First,within the limits of the right to life of victim self-determination,others’ “willful” acts that do not achieve higher value and dignity of the victim ’s life should not be allowed.The criminal law should respect the victims’ decision to preserve the dignity of life.Second,within the limits of the victim’s self-determination for physical health,the perpetrator should still not be allowed to help and abet the victim’s self-injury and cause serious injuries,and respect the victim’s freedom of self-determination resulting in medical injuries,athletic injuries,and minor injuries.Thirdly,in the crime of fraud,the criminal law should not transfer the right to protect the property to the victim,and then accused the victim of self-responsibility.Fourth,in the right to protection of personal information,if the victim’s self-determination leads to the leakage of personal information,he should bear part of the responsibility for the results,which in turn affects the responsibilities of the actor.The fifth part: the way of realizing the victim’s right to self-determination.First,in the field of intentional crime,because the victim’s consent and the victim’s commitment are essentially the transfer of the rights of the victim,the division of the two positions in the criminal theory system is not suitable for China’s crime.It constitutes an element,so it is not advisable to distinguish between the two,both of which are violations of the law and hinder the cause.Second,in the field of negligent crimes,criminal law should respect the application of victims’ right to self-determination in self-harm participation,and the resulting consequences should be borne by the victims themselves;in "consensual other-based harm",the victims risk "being in danger" "Can not be regarded as the center of gravity of the right of self-determination,and the" fault "," act "and" outcome "of the actor have already met the relevant crime composition stipulated in China’s criminal law.Therefore,the criminal law should protect the rights of the victim and impose fault.Actor responsibility.In short,the "victim’s right to self-determination" in the civil law system has been infiltrated into China’s criminal law theory,affecting the perpetrator’s criminal responsibility and division.Viewing foreign theories from the perspective of traditional Chinese legal culture is conducive to the construction of local theories related to the right of victims to self-determination,rather than following the footsteps of the civil law system.On the basis ofthe existing criminal law provisions and theoretical research,the introduction of the victim ’s right to self-determination is based on a conservative and progressive attitude,which not only respects China ’s traditional legal culture,but also takes into account the degree and limits of public acceptance of criminal law,and also follows the natural development law of China’s criminal law on the crime constitution system.In the future,the use of the victim ’s right to self-determination,regardless of whether it is still a violation of the law and regulations,should follow the laws of the development of the law and the public ’s legal feelings in practical practice.After all,law is a social science,and only a law can last must be implemented in social life.