Empirical Study On The Judicial Determination Of Criminal Victim’s Fault

According to 1,306 judgments in the past three years,the victim’s fault as a circumstance of discretionary sentencing has been widely applied in various criminal cases.However,due to the current situation of lack of legislation and confusion of judicial interpretation,the determination of this circumstance mostly relies on judges in individual cases.discretion in the process,which creates many problems.Specifically,there are various anomie phenomena in the judicial application of the victim’s fault,the judicial determination has not yet formed a unified standard,and the judicial organs often list facts instead of documents to reason,which damages judicial authority.At present,academic circles generally believe that "legalizing" the discretionary circumstance of the victim’s fault is a good medicine to solve the above problems,but the social effect produced by aggressive legislation may be counterproductive.The dilemma of the application of this circumstance does not lie in its own "discretionary",but in the "uncertainty" of its applicable standard.Therefore,the construction of a unified identification standard is the primary task at this stage.Specifically: The victim must have committed an act that "induced","participated in" the crime,or "inherited" the result of the crime;The act must exceed the standard of social equivalence;The victim’s subjective aspect must be intentional or negligent;Meets the requirement of "relevance".In addition,the judicial organs should accurately grasp the legislative intention behind the specific application of the relevant provisions,and should not relax the identification requirements due to the nature of the case.The boundary between the two should not be used as a general rule of the victim’s fault.