A Study On The Influence Of The Victim’s Fault On The Judgment Of Penalty In Intentional Homicide Cases

In the 1960 s and 1970 s,the victim rights movement rose,and the victim was introduced into the traditional criminal state dual structure.The victim’s fault was mentioned more and more in the defense,which collided with the simple retribution psychology of "killing for life" in China.The judicial practice gradually began to comprehensively examine the role of the victim in the crime and rediscover the victim.In the intentional homicide cases where the fault of the victim occurs frequently,the two parties often have fierce interactive behavior,which is very harmful to the society.Therefore,this paper puts the fault of the victim in the intentional homicide case and discusses the impact of the fault of the victim on the discretion of penalty.The first part of this paper selects the intentional homicide cases that mention the victim’s fault from January 1,2010 to August 11,2021 in the handle case website.Through the analysis of the sample cases,it is found that there are some problems in the victim’s fault standard and legislative and judicial level.On the one hand,it is the standard level of the victim’s fault.The elements contained in the connotation expression of the victim’s fault in different courts are different,and the reasons for not establishing the victim’s fault are also different,reflecting the problem that the definition of the concept of the victim’s fault is too limited and the constituent elements are uncertain,resulting in the low overall adoption rate of the victim’s fault.On the other hand,the legislative and judicial levels are imperfect.The provisions on the fault of victims in the legislation only stay in principle to recognize its existence,and do not independently clarify and legalize it.The sentencing guidelines issued by the Provincial Higher People’s courts are not unified in terms of sentencing range.In judicial practice,all kinds of disputes reflect the disadvantages of different judgments in the same case.The starting point of this paper is to classify the disputes of intentional homicide cases involving the fault of the victim into seven types: trivial disputes,family disputes,marriage and love disputes,neighborhood disputes,economic disputes,disputes caused by illegal and criminal acts and wage disputes,and analyze and summarize the deviations in the identification of the fault of the victim and the discretion of punishment in each type of disputes,in order to summarize the universal The comprehensive concept and constituent elements of the victim’s fault,and puts forward specific targeted judicial practice standards according to the characteristics of each kind of dispute.The second part of this paper expounds the theoretical basis of the impact of the victim’s fault on penalty discretion in intentional homicide cases.Taking the subjective and objective level of criminal responsibility as the standard,the current mainstream theories are divided into conditional right theory,self created danger theory,responsibility distribution theory,expected possibility theory and condemnability reduction theory,analyzes the rationality and limitations of each theory,and puts forward a comprehensive attribution perspective.The third part of this paper puts forward two ways to improve the problems in the sample cases.The first is to standardize the judgment path of the victim’s fault,clarify the constituent elements of the victim’s fault and provide specific identification standards by determining the connotation and extension of the victim’s fault,and the second is to explore the legalization path of the victim’s fault circumstances.In legislation,the victim’s fault can be included in the statutory sentencing circumstances by means of criminal law amendment,and the supreme law can also issue sentencing guidance based on the actual situation of all localities,Standardize and unify the types of victims’ faults and the range of sentencing.In judicial practice,according to the characteristics of different types of disputes in intentional homicide cases,it refines the standards of judicial practice.