Research On The Judicial Application Of Victim Factors

The victim factor is based on the nature of the perpetrator’s behavior caused by victims and various behavioral factors that affect the perpetrator’s sentencing as Circumstances of sentencing.The more common ones are known to be victim’s commitment,victim’s fault,and victim’s forgiveness.As the victim factor is a discretionary sentencing circumstance,in the current judicial practice of our China,when the perpetrator is convicted and sentencing,due to the lack of operational norms guidance,judicial personnel only based on personal discretion,which leads to the current specific victim factor in the judicial application of the various problems.In view of this,this thesis attempts to analyze feasible improvement initiatives by studying the problems of specific victims in judicial application,in order to give full play to the role of the victim factor and draw attention to the current problem of the lack of victim status in the field of criminal law.Chapter 1 of this thesis addresses the basic theoretical issues of the application of the victim factor in general,including the theoretical study of the selection of the victim factor,the basis of its application,and the mechanism of its application.SectionⅠof which defines the concept of victim factors and clarifies the selection criteria of victim factors,the object of this thesis is identified-victim’s commitment,victim’s fault and victim’s forgiveness-according to the non-specific nature,interaction with criminal behavior,temporal relevance,and substantial influence characteristics of victim factors.SectionⅡclarifies the concept of specific victim factors and explores,through doctrinal analysis,the three justification bases that can affect decriminalization and leniency.After various doctrinal discussions,the principle of benefit queasiness and the principle of favorable choice of victims are taken as the justification basis for victim’s commitment.The theory of the victim’s fault is analyzed in detail based on the theory of subjective and objective merging,and the theory of diminished responsibility.Subsequently,we analyze the theoretical support for the application of victim’s forgiveness from the perspective of restraining criminal law and Concept of restorative justice.SectionⅢ analyzes from a theoretical perspective how the three are applicable to conviction and sentencing,to clarify the mechanism of the three applicable to conviction and sentencing,resulting in the legal effect of decriminalization and leniency.For decriminalization,the victim’s commitment and the victim’s fault can be demonstrated from conformity of constitutive elements and criminal irregularity.The evaluation of the value of the victim’s forgiveness found that a certain range of victim’s forgiveness is not realistically punishable.Afterwards,it analyzes the mechanism of the application of lenient legal effects from the social harmfulness and personal danger.From Chapter 2 onwards,the judicial application issues of victim’s commitment,the victim’s fault,and victim’s forgiveness are separately subdivided.Chapter 2 focuses on the analysis of the judicial application of victim’s commitment and its resolution.The victim’s commitment includes the victim’s consent and promise.Among them,the content of consent is implicit in the criminal law text of China premised on the crime against the will of the victim,so it will not be discussed more.This thesis focuses on the study of the application of victim’s promise.The thesis first finds common problems in the judicial application of victim’s promise by searching relevant criminal judgments in the past three years,namely,commitment is mainly applied to crimes beyond the authority of personal commitment and the number of applications is very small.Not only is there a lack of standards,but there are also the problem of large differences in the mitigating range.We then explore whether and how the victim’s promise can be applied in specific judicial situations,such as where the victim has misunderstood the promise and where the woman has voluntarily committed the crime of abducting and trafficking in women.Finally,this thesis tentatively proposes to set the content of the victim’s commitment in the judicial interpretation or normative judicial documents to provide a platform for its application.And to provide the basic standards of application with reference value,set the appropriate and specific scope of application,so as to provide a reference for the mitigating range of substantive conditions.Chapter 3 is about the application and improvement of the victim’s fault.First of all,we search the relevant provisions on victim’s fault in China’s criminal norms and analyze the current judicial status of the application of victim’s fault through a large number of case searches,and then explore the common problems in the judicial application of victim’s fault.First of all,we search the relevant provisions on victim’s fault in China’s criminal norms and analyze the current judicial status of the application of victim’s fault through a large number of case searches,and then explore the common problems in the judicial application of victim’s fault.Due to the lack of operability of the victim’s fault norms,inconsistent application standards,subjective emotions of judges and other factors,there are common problems in its application,such as various standards of recognition,low application ratio,harsh conditions and imbalance in sentencing.After that,the issue of whether there is a victim in illegal fundraising activities and whether the victim’s fault can be applied is studied.Accordingly,this thesis draws on the relevant foreign legislative experience to strengthen the setting of the norms related to the victim’s fault,so that the norms are operable.At the same time,by drawing on the criteria for determining the victim’s fault by judges in judicial cases and the discussion of criminal law theories,we define the applicable criteria for victim’s fault and pay attention to the degree of fault and the application of the standard of sentencing range,trying to provide operable rules for proper application and just sentencing.Chapter 4 is about the application of victim’s forgiveness and Its Solution.Victim’s forgiveness has been reflected in many sentencing guidelines.By searching the cases of applying victim’s forgiveness in Shanghai Changning District in 2020,this thesis finds that the current application of victim forgiveness is common and applied in more than half of the personal assault cases,but also finds common problems in its application.As a discretionary sentencing circumstance,the victim’s forgiveness mostly appears in the form of a letter of understanding,which is applied in conjunction with financial compensation,and the applied sentencing concessions are not uniform.Due to the lack of review and supervision,its authenticity and voluntariness are doubtful.In addition,whether the victim’s forgiveness can be applied in death penalty cases has been controversial.From the analysis of criminal policies and practical values,the victim’s forgiveness can be applied in death penalty cases,but it cannot be applied in cases with significant social welfare as the dominant legal interest and murder cases with extremely cruel and bad nature.In view of the judicial application,this thesis attempts to propose countermeasures from the perspective of legalization of discretionary circumstances,and clarify the basic standards of application and strengthen the review and supervision,in order to regulate the application.