Research On The Application Of Victim’s Fault In The Judicial Practice

With the rise of the victims’ rights movement in the 1960 s,the victim theory ignored by the traditional criminal law began to be concerned by criminal law scholars,but it led to paying too much attention to the protection of the rights of victims,which makes the penalty more severe.Therefore,some criminal law scholars began to examine the phenomenon of overprotecting victims’ rights.It is under this background that scholars began to study the theory of the fault of victims.In Chinese criminal law theory,the victim’s fault,as a discretionary sentencing circumstance,affects the perpetrator’s criminal responsibility,and meanwhile in judicial practice,the victim’s fault behavior and the perpetrator’s criminal behavior are usually inextricably linked,especially in the crime of violating personal rights and property rights,which is often accompanied by the victim’s fault.However,the problem of victim’s fault is not clearly stipulated in Chinese criminal law,and judicial interpretations extremely lack related provisions either.As a consequence,there are inconsistent views on whether to identify the existence of victim’s fault and the impact of victim’s fault on conviction and sentencing in the judicial practice,resulting in different judgments in the same case.Starting from the current situation of the victim and the actual application of the fault,this paper provides two reasonable methods for the victim to explore and solve the existing problems in the judicial practice.The first part is to define the related concepts of the victim and the victim’s fault,and find the justification for the victim’s fault affecting criminal responsibility.The first section defines the different scopes of ’victim’ concept among criminology,criminal victims and victim’s fault,and makes it clear that the scope of victims discussed in these three circumstances is not the same.To be specific,’victim’ in the fault of victims only refers to natural persons.Secondly,it determines that the victim has three characteristics: victimization,interaction and accountability.The second section starts from both subjective and objective aspects,and finds that the victim’s fault is a unified concept of subjectivity and objectivity.Its meaning refers to the behavior in violation of moral norms or laws and regulations committed by the victim intentionally or negligently and promoting the occurrence of criminal behavior.Then it is clear that the victim has two characteristics: unconscionability and relevancy.After that,the fault of the victim is distinguished according to different standards,and it is advocated to divide it into the fault of the victim affecting conviction and the fault of the victim affecting sentencing.Next,it points out the four elements needed to establish the victim’s fault,and finally,it introduces the relationship between the victim’s fault and the exercise of rights.The third section combs various theories that the victim’s fault affects the legitimacy basis of criminal responsibility,and points out that the theory of reduced condemnation is more reasonable.The second part discusses the application of the victim’s fault in reality.The first section takes Shanghai as the research scope,analyzes the judicial examples of the victim’s fault affecting sentencing,and discusses the application status,characteristics and practical difficulties of the victim’s fault in the judicial practice.The second section draws the conclusion that the victim’s fault as the sentencing circumstance should be institutionalized,and analyzes the significance of institutionalizing it.The third section discusses the specific path of the institutionalization of the victim’s fault affecting the sentencing from the two levels of legislation and judicature.The third part discusses the application of the victim’s fault in what it should be.The first section discusses the basis of the victim’s fault affecting the conviction,and demonstrates that the victim’s fault can affect the conviction from the theory of moral retribution,penalty utilitarianism and the principle of fairness.The second section combs the criminal law performance of the victim’s fault affecting the conviction,and makes it clear that the victim’s fault can affect the perpetrator’s establishment of the crime,legalize his behavior and exclude the perpetrator’s criminal responsibility.Finally,it explores the specific path of the victim’s fault into the conviction mechanism.Firstly,it is clear that the victim’s fault into the conviction mechanism must determine its position in the crime constitution system.Secondly,it combs and evaluates the views of scholars at home and abroad on this issue.Ultimately,starting from the four elements and the three-tier crime constitution system,this paper points out that in the four elements crime theory system,the victim’s fault theory is independent of the crime constitution and belongs to the category of crime exemption,while in the three-tier crime theory system,the victim’s fault belongs to the category of reasons for responsibility obstruction.