Judicial Recognition And Application Of Victim Consent

Victim's consent as one of the important defenses in criminal justice practice,Although there are no explicit provisions in our criminal law like justifiable defense and emergency avoidance,the victim's consent has its justified theoretical basis,and it is still a generally accepted cause of excluding crimes and has important significance in judicial practice.However,it is also due to the lack of clear identification rules,it makes judicial practice inaccurate in understanding the victim's consent and makes it difficult to obtain good application.Therefore,the relevant theories agreed by the victims urgently need to be reorganized and reconstructed,with a view to providing a set of practical methods for judicial determination and application,better guiding practice,and making fairer legal decisions.The victim's consent can serve as a non-criminal cause of justification beyond the law.There is sufficient justification in theory.From the perspective of behavior and legal benefits,there are social equivalence theory,legal behavior theory,renunciation of interest theory and renunciation of legal protection theory,and the perspective of civil liberties is more reasonable today in pursuit of the rule of law.At the same time,the position of the victim's consent in the criminal law system cannot copy the criminal law theory of Germany and Japan.On the basis of adhering to the four requirements,the consent should be included in the criminal constitution system.Looking at the judicial status of the victim 's consent in China,there are signs of “affirming in theory and denying it in specific jurisdiction”.The legal evaluation is difficult to get rid of the strong subjective influence.The court ruled that it was unclear,there was a large amount of discretionary rights,and there was no clear rule.This makes the theory not well applied.The application of the theory in judicial practice needs to be reviewed and reconstructed urgently.Basic requirements for establishing the consent of the victim,first of all,the subject is required to be qualified,the victim should have the right and ability to consent;Secondly,the formation of will is required to be free,and the expression of meaning is true.It should also be noted that flawed victim consents include coercion,deception,false consent,and consent under misunderstanding.Due to its particularity,it should be analyzed and judgedcomprehensively,and cannot be generalized.Finally,in principle,it should be done before or during the event,and at the same time,the value of consent after the event in our judicial practice must not be denied.Regarding the restrictive requirements of the victim's consent,it includes both horizontal and vertical restrictions.The horizontal aspect is the limitation of consent.First,the interest should be personal and not related to the public interest.Second,the consent of the individual interest also has a limitation,and the right to life must not be waived.The vertical aspect is the limitation of the degree of infringement.The behavior of the perpetrator cannot exceed the preset range agreed by the victim,and it also needs to meet the standards of social equivalence.