被害人過錯認定的實踐與法理

Abstract

The victim's fault usually refers to a kind of behavior made by the victim, which is directly or indirectly related to the criminal behavior of the offender, and should be blamed based on social ethics and legal spirit. The victim and the defendant are a pair of basic contradictions in criminal cases. In cases of intentional injury, intentional homicide, provocation and extortion, the occurrence of criminal acts and the formation of victimized results are not always negative and static, but often the result of the interaction between the offender and the victim. Correctly identify and accurately apply the "victim's fault", It is of far-reaching significance to realize the adaptation of crime and punishment and the individualization of punishment.

There are few applicable legal norms for the identification of the victim's fault circumstances in China. The criminal law does not determine the victim's fault as the statutory conviction and sentencing circumstances. At the same time, there is no specific applicable standard. The victim's fault is only the discretionary sentencing circumstances in the criminal law, which leads to different influence degrees of the victim's fault in the trial of cases and different case handling results. It is an urgent practical problem to unify the standards and scales of "victim's fault", which is the sentencing circumstances of a certain crime.

Through the empirical analysis method, this paper searches the court judgment document network and relevant case compilation, analyzes the cases of intentional homicide, intentional injury, fund-raising fraud and traffic accident involving the fault of the victim in recent years, and summarizes the fault degree, fault type of the victim and the adoption degree of the court. Through the case analysis method to study typical cases, this paper summarizes the systematic and typed characteristics of the victim's fault. The use of comparative analysis to study the theory and practice of victims' fault abroad is convenient for reference and reference to the improvement of China's judicial system. The paper also uses the method of data analysis to elaborate the relationship between the victim's fault and sentencing judgment. Through the display and analysis of data, it reflects the practical dilemma and lack of function of the victim's fault as a discretionary sentencing plot. It also uses the analysis method of legal psychology as an auxiliary research method to judge whether the judgment really conforms to the value and spirit of criminal law, and makes a detailed analysis of the psychological law of the victim's criminal process.

The paper is divided into six parts. The first part is introduction. The second part is the restatement and comment of the victim's fault theory. Starting from typical cases, from the perspective of justice and human feelings, demonstrate and study the practical and theoretical significance of the victim's fault, summarize and refine the relevant views and theories, and summarize the impact of the victim's fault on criminal responsibility. The third part is the identification of the victim's fault in legal and judicial practice. This paper makes an empirical analysis of the victim's fault, analyzes the current situation of the victim's fault identification in legal and judicial practice, and puts forward the problems existing in the victim's fault identification. The fourth part is the influence of fault on the victim. By incorporating the victim's fault into the conviction and sentencing links in the criminal trial and affecting the results, the criminal procedure structure can more objectively reflect the actual situation of the case and ensure the fairness and justice of the trial. The fifth part is the development vision of the theory of victim's fault in crime and punishment. Through the legalization of the victim's fault circumstances, build a systematic victim's fault system, take fairness and justice as the ultimate principle, and put forward the system design and judicial operation prospect of the legalization of the victim's fault circumstances. The last part is epilogue.

For criminal trial legislation and practice, the most important core of establishing the victim fault system is to legalize the victim fault circumstances, that is, the victim fault theory is deduced into the victim fault system. The specific design path of the victim's fault system is to adopt the mode of combining the general provisions and judicial interpretation, that is, it not only stipulates that the victim's fault in specific types and specific charges affects the criminal responsibility in the judicial interpretation of the criminal law, but also makes principled provisions on the victim's fault affecting the criminal responsibility in the general provisions of the criminal law. In the general provisions of the criminal law, add the concept, types, constituent elements, identification standards of the victim's fault and the legal norms of the general provisions of the victim's fault affecting criminal liability, add the provisions of the victim's fault affecting criminal liability in specific cases in the judicial interpretation of the criminal law, and refine the relevant provisions of the victim's fault in each specific crime. In addition, the criminal procedure law stipulates the identification procedure, evidence collection, proof, cross examination and proof standard of the victim's fault. Promote the integration of the victim's fault system with the criminal reconciliation system, the leniency system of pleading guilty and punishment, and the civil compensation system of private prosecution cases, and further promote the standardization of sentencing procedures. Enrich China's criminal law system, timely release judicial interpretation, guiding cases and sentencing guidance, and clarify the specific problems in the legalization of the victim's fault circumstances.

Studying the judicial identification and application of the victim's fault is not to reduce the defendant's criminal responsibility, but to treat the victim and the defendant with a fair attitude, explore the defects and loopholes of China's crime and punishment evaluation system, and clarify the value significance of studying the victim's fault behavior, hoping that in the process of dealing with relevant criminal cases, judicial workers can learn from the law Based on the relationship between heaven and human feelings, comprehensively consider various factors of crime occurrence and development, make an accurate criminal law evaluation on the perpetrator, and finally adapt to crime and punishment, so that every judicial case can achieve fairness and justice.

Date of Award	30 Sept 2022
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Minkang GU (Supervisor) & Guobin ZHU (Supervisor)