On the criminal law significance of the victim's fault

                         A, problem

"A crime will be killed", is the West spread an old legal proverbs, it with the German scholar Hans. About Axide. Schneider put forward the "no crime without victim" point of view, in the most concise, intuitive way to reflect the crime is committed by criminals, and the offender is the implementation of crime for a victim of such a basic fact. However, in the traditional view of criminal law, as an "isolated individualopposition ruling" crime, often extreme abstraction, from its practical form and be contracted for the personal conflict and countries, the status of the victim is neglected to a great extent, victim, victim and crime people on the criminal conviction and sentencing, the role of state compensation of victims, the procedural rights of victims rarely. After the two World War, the victims are receiving more and more attention, from the victim and victim of crime has become a trend in the criminal law study in the world.

   In our current criminal trial practice, the fault of victim has become a hot issue. Actual occurrence of crime, criminals are not by a separate party initiated and completed, in many cases, all the participation of victims, completed in the interaction of offenders and victims in. The development and research of gradually deepening, the fault of victim has been paid more and more attention, in the process of the lawsuit right, consider and evaluate the fault of the victim in the criminal responsibility of the accused has no effect and the degree, has become the criminal judge every day must face the daily work. However, our criminal legislation and criminal law theory on the fault of victim attention has obviously can not meet the need of judicial practice. Research on the fault of victim in criminal theory rather pale, but not what valuable achievements for reference. Speaking of the legislation, only the article twentieth of the criminal law on justifiable defense provisions relating to the victim's fault problem. Although the Supreme People's court in the meeting stressed, the victim's fault should be considered as the plot. But, to be the victim of what kind of behavior can be called the fault, line fault and non fault where, what is the nature of the fault of the victim, in what kind of range the victim's fault, how to determine the degree of fault, the fault of victim on the defendant's conviction and sentencing to issue what effect, still is the urgent need to solve the problems in the judicial practice.

The concept, the victims fault

The victim is the offender or offenders is an opposite concept, refers to the crime and suffer people behind the property damage, including natural person, legal person and the state. The victim is refers to the natural person crime of abuse. Victimology (Victimology) study showed that correspond to each other, as in criminal legal relationship or a pair of factors, between the offender and the victim has always maintained a relationship.

The German criminologist Hans von Henty think, the crime is a kind of "anti social factors of self catharsis process". "Positive" and "negative" crime victim is "complementary partners", it is the effect of "shape" of his crime, there is a relationship between the offender and the victim, "mutual inducement". In a sense it can be said that some crime is itself "to" the victim.

American scholar Ke Kelin (Conklin) after the research discovery, the following factors in victim tendency seems to be difficult to avoid: 1, inciting factors, namely the victims say or do certain things and make people to commit crime; 2, element of crime, namely crime victim actively encourage or to another person by means of crime; 3, promoting factors that is, the victim for intentional or negligent and put yourself in a dangerous situation was killed; 4 factors, weakness, which some people because of personality, social status or into a dangerous situation was murdered, and is easy to become crime victims; 5, the factors of cooperation, namely the victim is involved in mutually agreed of the crime; 6, attractive factors, namely the rich tend to attract crime; 7, immunity factors, the criminals do not think the victim will report to the police or to testify in court, perhaps because the victims are illegal.

   In the German scholar Hans. about Axide. Schneider editor of the "international within the scope of the victim" in one book, some scholars conclude the mode of interaction between criminal and victim as the following three: mode 1, push the victim, by one or several behavior into criminal; two, conflict model there is a long time, interactive relationship between the offender and the victim of the violation, party, party a lot of family violence victimization, belong to this kind of mode; three, can use pattern, the criminals and victims is not what the long time interaction, the victim is completely passive, criminal victimization in almost unconscious. The elderly usually belong to the murder case.

Although the criminologists are not the fault of the victim is given a clear answer, but through the understanding of the relationships between the offender and the victim, we can more clearly, the crime is caused by the interaction between the victim and the offender and cause, this is a fact that allow all doubt. Therefore, have occurred in the circumstances of the case, the offender and the victim should be placed on the position, who shall be responsible for examining the consequences (i.e. responsibility), or the consequences of whose responsibility should belong to the field, in the both sides should bear the responsibility of the case, it should be made clear they shall bear the liability component.

We think, the fault of the victim is refers to the victim in violation of the law, ethics, infringes upon the lawful rights and interests from criminal crime behavior. From the crime is a product of interaction between the offender and the victim's point of view, we think, the fault of the victim, the victim's damage is inflicted to the perpetrators of the "responsibility", it means that, in the same victim offender interaction caused the harm to the society of the time, according to the interaction the attitude, position and role, to a certain extent, shall bear the liability for the consequences caused by the harmful consequences, which should belong to the victim's responsibility in some extent. In general, the fault of victim has the following characteristics:

Subject 1, the victim's fault is the victim. For the offender to a fault outside the third implementation of tort, can not be identified the victim's fault. For example, a fault, but the perpetrators of the relatives of a B implementation of crime, there is no fault of the victim, does not affect the sentencing of the perpetrators.

2, the victim's fault is a kind of behavior, with objectivity, can be represented as a cause of the fault behavior, laugh and tease the crime to people's privacy and defects, as is the case. For example, a crime victim with a B disputes in the office, the former at the latter impotence, will die without descendants, causing the latter to anger under the knife, the Spurs into minor injuries; also can be represented as a violation of the fault behavior, the unjustifiable self-defense situation, harm behavior to unlawful infringement, infringement belongs to the act of infringement of the fault; also can be represented as a later lead to secondary adverse consequences of behavior, the crime of causing traffic casualties, victims do not cooperate with treatment, delaying the rescue time, causes the death of the occurrence or severity of injury, belonging to such a situation.

3, the fault of victim has not subjectively, knowing that their behavior might lead to harm or harm behavior aggravate, still insists on for such behavior, three kinds of fault behavior mentioned above has not such. In addition, the improper subjectively victims also include are enough to cause encroached consequences of negligence. For example, someone drank beer on the train, with a bag on the table, and forget the Pibaula zipper, the cash is exposed to the outside, and then fell asleep, resulting in cash stolen, the victim has a serious fault for being stolen.

 4, the fault of victim has relevance, which are closely associated with the tort, the fact of tort has cause or promote. If someone is implemented in the law have fault behavior, or moral but not practical, and cause or promote injurious act to have this behavior, can not be identified as the fault of the victim of criminal law.

4, fault must reach a certain degree, not as long as the victim's behavior is not good, it must affect the perpetrators of the conviction and sentencing. What kind of degree of fault, it is criminal law, affect the perpetrators of the conviction and sentencing, should be to the public in general condition to judge the fault to cause or promote injurious act as standard.
   Is to correctly deal with the significance of the victim's fault: a lot of the facts of the crime is a crime and the victims on both sides of the function can be realized, in some cases, if there is no fault behavior of the victims, criminals will not commit a crime. In such a case, criminal law consideration of victim's fault problem, one is the requirement of the fair value. Do not confirm the victim's fault, the defendant is difficult to take sentence, the educational function of criminal law must be reduced; on the other hand, it embodies the criminal law not only by punishing perpetrators to protect the interests of society, but also by giving the victim corresponding liability in certain circumstances, in order to stay in the social life of caution, avoid putting themselves interest in a dangerous state.

                  Two, the victim's fault for convicted significance

Fault influencing the offender, the victim behavior 1

Crime is a result of interaction with the victim offender. It is between the offender and the victim of interaction, mutual influence, can cause the causes of the crime. In this sense, the perpetrators and victims on the consequences of the crime should bear the responsibility, is the shift in the relationship. In the offender in the sponsor status, leading the whole process of the victim caused harm, completely innocent circumstances, should the offender constitute a crime, criminal responsibility for their actions and consequences; if your positive attitude made by leading the whole process status, cause harm, but the offender by order it is dangerous to encourage method, then the offender does not constitute a crime, the criminal responsibility of the consequences of their behavior and not cause harm; in behavior and its consequences are generated by the offender and victim interaction, both parties shall assume corresponding responsibility, the offender constitutes a crime, criminal liability is determined according to the specific. According to China's criminal law and judicial interpretation of the relevant provisions, further explanation is as follows:

(1), about the justifiable defense. In China, the provisions of the first paragraph of article twentieth of the criminal law: "in order to enable countries, the public interest, the person himself or herself or others, property and other rights from being infringed, and to the suppression of unlawful infringement behavior, causes harm to the unlawful infringer, is justifiable defence, and he shall not bear criminal responsibility"; "the ongoing assault, murder, robbery, rape, kidnapping and other serious violent crimes endangering personal safety, to take defensive actions, against illegal caused casualties, not of excessive defense, and he shall not bear criminal responsibility." In the case of self-defense, the implementation of the infringement of national, public interest, the person himself or herself or others, property and other rights are infringed, is negated by the state law and order, to prevent such violations, is the country to encourage and advocate, in the range of unlawful infringement necessary, to the unlawful infringement harm and even death consequences, the offender does not constitute a crime, no criminal responsibility. This is the victim and the offender shall bear full responsibility exemption typical.

     (2), the principle of reliance in criminal negligence. The principle of reliance on some occasions, refers to the social life, should give trust to the behavior of others, believe that the behavior of others to ensure their safety and the normal activity of. This is before the two World War the German case formed in November 10, 2000 the Supreme People's court "to hear the traffic accident on the criminal case concrete application law interpretation of several issues" the second stipulation: "the traffic accident is under any of the following circumstances, is less than three years imprisonment or criminal detention. (a) more than 1 people died or injured 3 people, negative or the primary responsibility for all accidents; (two) the death of 3 people, the same negative accident responsibility". The "explanation" article fourth also have similar provisions. Here the "negative accident or the primary responsibility, equal responsibility for the negative incidents", is the traffic police division responsible for the accident, but also relative to the degree of the fault of the victim. This division of responsibility to distinguish if both parties breach of duty of care, if the victim has violated the traffic regulations act or other wrongful acts, it will affect whether the act constitutes a crime, and crime and light crime.

   2, the fault of victim impact on properties of its behavior.

   Under normal circumstances, the victim is sympathy. However, in certain circumstances, due to the fault of the victim caused serious consequences, criminal law, in addition to the penalty for the offender, the victim of criminal law also provides for criminal liability. State organ personnel in our country criminal law 406th stipulation of the contract signed, the crime of dereliction and being deceived is the case. This article is on the extreme penalty victims in contract fraud. The crime of major losses to the interests of the state for the establishment of the elements, determination and the injured party for loss of duty related, such as the injured party (national office working personnel) fails to perform their duties, the consequences caused by the bears the positive responsibility according to the law, it shall bear criminal responsibility. If the victim fault level not reached the degree of criminal law, is not handled by crime.

              Three, the victim's fault for the sentencing of the perpetrators of significance

 1, our country criminal law twentieth provisions of the second paragraph, the justifiable defense exceeds the limits of necessity and causes serious damage, he shall bear criminal responsibility, but should be reduced or exempted from punishment. According to the regulations, the unjustifiable self-defense, the illegal infringement behavior of the victim is a fault, the fault liability of sentencing and treatment of criminal suspects, this is our country penal code expressly situation.

   In 1999 2, the Supreme People's court "notice" issued by the national courts to maintain rural stability of criminal trial work summary of the Symposium on requirements, for the rural crime or the crime case, marriage and family, neighborhood disputes caused by intentional homicide cases involving the death penalty discretion, the victim has a serious fault, leave adequate leeway to the defendant the death penalty should be especially careful,, generally should not be sentenced to death immediately. Cause in some non civil disputes, or non rural crime or the crime, no other statutory mitigating, mitigating circumstances, and killed one has obvious fault, according to the actual situation, carry on death penalty discretion to the defendant, the victim's fault as one of the discretionary circumstances of sentencing, has been generally accepted by the judicial department it is widely used in the process and determine the execution of punishment, considerations.

   A form 4, carnal knowledge of a child belonging to the rape, the provisions of the second paragraph of article 236th of the criminal law, rape young girls under the age of fourteen, to rape, he shall be given a heavier punishment. Constitute the crime subjective demands the offender knowingly victims must be the youngest daughter, or knowing that the victim may be the youngest daughter, regardless of whether the victim or statutory rape, and determined to carry out. For the young girls precocious, tall, and age, the offender in did not know and could not know the statutory circumstances, the young girl agreed to have sex, it does not constitute the crime of rape. In this case, due to the fault of the victim, the offender does not know the young girl, which does not have the subjective condition of having sexual intercourse with a minor, therefore does not constitute a crime. This is the fault of the victim offender behavior of impact properties.

                      Procedure law four, the fault of victim

 The provisions of the criminal procedure law article forty-third in China, the judges, procurators and investigators must, in accordance with legal procedures, to prove the criminal suspect, defendant's guilt or innocence, crime seriousness of evidence. That is to say, not only to collect prove the criminal suspect, defendant's guilt and crime evidence, also want to collect confirmed that they are innocent and guilty evidence. In the judicial circle of our country, owing to the victim's fault for the offender sentencing convicted of lack of understanding, not enough attention, in the specific case, the working emphasis on crime evidence collection, often ignore the collection relates to the victim's fault evidence, which would make the investigators could not on the facts of the case have a comprehensive understanding to a certain extent, it is difficult to grasp the interaction relationship between perpetrators and victims, this may affect the suspect, the defendant is to determine the conviction and sentencing. To strengthen the study on the victim's fault, which help the investigators collect evidence, in accordance with the law the right to promote the litigation process, to ensure the proper handling of the case.

The victim's fault common five, judicial practice and cognizance

Needless to say, the provisions on the fault of victim in criminal law in our country is very rough, the lack of legislation, the criminal law theory research about the fault of the victim is also quite pale. For the victims of what kind of behavior constitutes a criminal sense of fault, impact properties and processing for the offender behavior, whether in practice or criminal law theorists don't love one is. But the fault is in real life the victim in the real problems in our judicial work, every day must face. Following on the fault of victim frequently in practice are discussed.

     1, the implementation of a violation of the victim or other criminal acts, mainly for murder, robbery, rape, robbery, damage and other acts of violence. In this case, people in order to the country, the public interest, the person himself or herself or others or other rights from being infringed, to the suppression of unlawful acts to illegal behavior, damages, is the justifiable defense, and he shall not bear criminal responsibility, defensive behavior is obvious when, according to the situation different nature of the crime, but it should be reduced or exempted from punishment.

2, the implementation of the violation of civil law, who shall perform without obligations. For example: a man and a woman after divorce, both parties of the decision daughter lives with his father, a woman to pay alimony obligations. After a woman has no obligation to pay alimony, a man in the request payment fail circumstances, out of anger and killed a woman.

3, the victim, slander, insult, use at intimidation or other illegal or unethical behavior so that perpetrators are enraged, resulting in a strong spirit of excited state offender victim. For example, the victim and offender B a wife has an adulterous relationship, when he face and B B wife sex, and laugh at the B impotence, B cannot bear, will be a knife stabbed.

4, the continued implementation of illegal or unethical behavior on the offender, the perpetrators of long time in the spirit of hand stimulation state, thus injuring the victim's behavior in a burst of mental excitement state. Somebody always harm the village, do all kinds of evil, B for pesticides to kill the man; in rural areas sometimes loyalty behavior the case.

5, the victim out of their own pain, asking others to relieve pain in the implementation of crime. For example: cancer patients for pain, asked the doctor to help others Dutch act to implement euthanasia behavior; the other for damage behavior of voluntary or victim etc..

6, the victim has the violation of administrative law or fact. For example: in the traffic accident cases, the victim in the accident itself is a violation of traffic regulations; sometimes the victim in violation of provisions of regulations on administrative penalties for public security, the implementation of molesting women or make trouble out of nothing to be killed or hurt.
   Naturally is a kind of social justice against, may be against the law, regulations, and other rules and regulations, may also is the social public order and good customs, ethics violations

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