The Impact Of The Victim's Fault On The Conviction And Sentencing Of Criminal Cases Of Illegal Fundraising

The legal interests of illegal fund-raising crimes are mainly the national financial order,which has the characteristics of large number of people involved,large amount of money involved and wide range of regions involved,which poses a serious threat to the property safety of the country and the people.In a large number of illegal fund-raising crimes,the involved ' victims ' and illegal actors often violate the national financial order with their common counterparty.In this process,many victims have fault behaviors.In the 1940 s,Western scholars have intervened in the study of the theory of “ victim ' s fault,” forming the theory of responsibility sharing,the theory of condemnability,the theory of self-accusation,and Viktimodogmatik.These theories have become an important basis for the influence of victim ' s fault on conviction and sentencing.Domestic scholars began to study this issue in the 1980 s,the late 1990 s to the early 21 st century,a large number of studies,the formation of early Hongman,Chen Xuwen,Qi Wenyuan,Che Hao as the representative of the theoretical research scholars,the theory of victim fault developed into a broad doctrine of victims;in the specific application fields of Viktimodogmatik,there are representatives such as Li Hong,Schunemann,and Claus Roxin.Chinese scholars represented by Wang Suzhi and Li Xueliang have tried to localize Viktimodogmatik.Academic and practical circles for illegal fund-raising criminal cases of victims,mainly concentrated in the discussion of illegal absorption of public deposits in the crime of the existence of victims,the status of litigation rights and financing fraud conviction and sentencing issues;for the influence of victim factors on conviction and sentencing in criminal cases of illegal fund-raising,the relevant research results are still less,mainly focusing on the analysis of the role of victim factors in the illegal and responsible aspects of victim fault behavior.The concept of victim ' s fault expresses the negative evaluation of some fund-raising participants,which is essentially a value judgment.It is easy to confuse with the concepts of ' victim consent ',' victim risk ' and 'victim self-responsibility '.Through the study of 80 domestic judicial case samples,it is found that: first,there is the problem of vague status of "victim" in judicial practice;second,the fault of the victim is not considered in conviction and sentencing.The main reasons for these two problems are that the research on the victim's fault behavior is not deep enough,and there is a lack of specific applicable legal norms in judicial practice,mainly as follows: 1 The legal position of fund-raising participants is unclear,2 Disputes over the status of victims in the crime of public legal interests 3 The concept of "fund-raising participant" is unclear.In view of this,the criminal responsibility of the corresponding offender in such cases should be re-evaluated.The basis of re-evaluation is to clarify the victim ' s ' fault behavior ' research and introduce the ' Viktimodogmatik'.On the basis of clarifying the status of the victim in the criminal case of illegal fund-raising,the influence of the victim ' s fault is analyzed.At the same time,using the ' grounded theory ',an important qualitative research method in sociological research,this paper analyzes and studies 17 victims in criminal cases of illegal fund-raising through empirical research.After obtaining the original data,three coding methods are used,namely,open coding,axial coding and core coding.Categories and coding are used to attribute the social phenomena shown in the data to codes,thus generating theory.This leads to three main behavioral characteristics of victims in criminal cases of illegal fund-raising : ignorance blindness,avoidance of self-prudential obligation and speculation.The internal causes of their behavioral characteristics are the greed in personality factors and the lack of professional knowledge and ability in personal ability factors.External factors are mainly high return factor,authoritative department factors and living environment factors.On this basis,the study takes the individual quality of the victim and the return rate of the nature of the fund-raising institution as the reference frame,and constructs the evaluation standard of the victim 's fault.According to Viktimodogmatik from the ' worthy of protection ',' need to protect ',' protection possibility ' three aspects of the illegal behavior of sentencing issues :First,clear the victim ' s fault should not affect the qualitative charges;second,in terms of the specific sentencing range,the victim ' s fault should be taken into account.The study suggests that on the basis of improving the legal provisions and relevant judicial interpretations,reference should be made to the victim behavior characteristics,the victim evaluation criteria and the sentencing range table constructed by Viktimodogmatik as the basis for the case.