A Study On The Application Of Victim Risk Acceptance Theory In Chinese Criminal Justice

The victim’s risk acceptance theory is a concept that reflects the victim’s "self-determined" will and has special criminal law significance for the perpetrator’s guilt,and should be grasped as a constituent deterrent.The current criminal law reform in China in the doctrinal discussion of crime theory and even the relevant judicial precedents have partially accepted the views of the German-Japanese three-level system,which makes the application of the victim’s dangerous acceptance theory as a constituent deterrent in the criminal justice has a certain system basis and application prospects.However,in China’s current judicial practice,there is still the inappropriate neglect of the victim’s "criminal status",and the verdict of some cases is not convincing,there are problems such as confusing the neutral helping act with the act of being entrusted,and making a wrong judgment on the dominant position of the victim,which leads to the sentence of the perpetrator in the verdict.This has led to the imposition of inappropriate penalties on the perpetrators,and has also led to some controversies.Based on the clarification of the theoretical connotation,application and classification of the victim’s acceptance of danger,and on the basis of the German and Japanese theories of guilt in the past jurisprudence,we believe that in the case of the victim’s acceptance of danger,we need to focus on the following four points: first,to judge the duty of care of the actor in conjunction with the rules of the dangerous activity itself;second,to determine the implied acceptance of the potential danger through the usual behavior of the victim;third,to make good use of the conditional causality to argue whether the actor has the status of guarantor;fourth,to block the attribution of responsibility to the actor on the occasion of not having the possibility of avoiding the result.Specifically,this thesis proposes to examine the validity of the victim’s "risk acceptance" from three aspects,namely,the scope of legal benefit,legal benefit capacity,and the dominant additive effect,and to examine the perpetrator’s culpability with the main content of "creating a risk not permitted by law".The system of attribution of responsibility.The purpose of this study is to provide a reference for the argument of the victim’s guilt in cases related to the victim’s risk acceptance.In the case of "participation in one’s own dangerousness",which is a victim-driven case,the criminal liability of the perpetrator should be denied.In the case of "consensual dangerousness of others",the perpetrator should be judged in the light of the "role allocation" and the substantive norms of the case to determine whether the perpetrator has superior knowledge compared to the victim,and if he/she has superior knowledge,then the victim’s dangerousness should be blocked.If the victim has superior perception,the victim’s risk is blocked.Acceptance of the deterrent effect on the establishment of the crime as an elemental deterrent does not preclude the imputation of responsibility to the perpetrator.