被害人过错的刑法评价
发布时间：2018-08-06 11:07
【摘要】：犯罪和被害是犯罪问题的两个方面,如同一枚硬币的两面,正是有了犯罪才有了被害的出现,是无法分离割裂来看待的。在被害人和犯罪人的共同作用下,犯罪的最终结果被“生产”出来了,在整体的犯罪形成进程当中被害人过错发挥着至关重要的作用。被害人的过错在许多刑事案件中是促使犯罪行为发生并造成犯罪结果的重要因素。毋庸置疑的是仅仅对犯罪人进行判罚是偏颇的,对被害人过错的忽略会造成非公正的结果的出现。如此必然导致激化出社会矛盾,而不是社会矛盾的化解。所以在某些存在被害人过错案件并对其进行刑法评价的时候,将被害人的过错对犯罪最终结果的作用力纳入到评价的范围内是有必要的,而且这种必要性的程度是很重要的,并按照过错行为的大小进行考量。被害人过错是刑法中作为酌定量刑情节的一种与很多其他因素并列,统一的衡量评判标准至今亦未形成。此种局面下,导致被害人过错的适用问题在司法实务中举步维艰。这样会导致出现同样类型的案件得不到原本应得到的相同且合理的评价。关于其过错对刑法评价的影响,具体问题结合具体情境加以具体的分析,况且各种各样的因素对犯罪人的影响程度也必然是不尽相同的,不能混淆一谈。作为一种可以被刑法评价考量的因素的被害人过错,对犯罪人的刑法评价发挥着其自身应有的作用,这种作用可以分为对犯罪要件成立与否的准绳,进一步说如果在犯罪成立的前提下则可以成为减轻从轻犯罪人刑法评价的考量因素。本文首先是对被害人过错的基础性组成的部分进行论述。其后阐述了有影响量刑的理论依据和渊源,过错分担理论、谴责性降低理论、期待可能性理论和自我答责理论亦进入了列举的范围,说明了影响依据并进行解析。列举对被害人过错对刑法评价产生影响的状况,与此同时释明被害人过错对于犯罪人刑法评价的影响,这种影响分为影响确定犯罪成立与否以及如何裁定犯罪人的刑罚轻重。对被害人过错这一因素的考虑是我国刑法中缺失的一环,结合我国的实际国情的基础上借鉴国外先进的立法和实践经验,以使我国刑法更完善。被害人过错一定的功效发挥着作为酌定量刑情节,然而由于其在刑法体系中难觅其踪,在实践中所发挥作用的亦是有限的。此种状况导致的不利后果就是对犯罪人可能不公正合理的量刑,刑法的基本任务是人权的保障机能,因此应刻不容缓势在必行将这种不公情况的改变,故被害人过错对刑法评价确立的影响是十分必要的。最后,在立法层面,应采取总则兼分则的立法模式,在总则做出量刑评判修改建言,有关被害人过错的具体条款在分则具体罪名中应增加,以对进行处理具体的有被害人过错案件。此外对适用被害人过错带来的弊端也进行了论述,以期促进被害人过错的完善与发展。
[Abstract]:Crime and murder are two aspects of crime, just like two sides of one coin. Under the joint action of the victim and the criminal, the final result of the crime is "produced", and the victim fault plays a vital role in the whole process of crime formation. The victim's fault is an important factor to promote the crime and result in the crime in many criminal cases. There is no doubt that it is biased to only punish the offender, and the neglect of the victim's fault will lead to the appearance of unfair results. This will inevitably lead to the intensification of social contradictions, rather than the resolution of social contradictions. Therefore, it is necessary to include the force of the victim's fault on the final result of the crime when there are some cases of victim fault and the criminal law is evaluated, and the degree of this necessity is very important. And according to the size of the wrong behavior to consider. The fault of victim is a kind of criminal law as a discretionary circumstances of sentencing juxtaposed with many other factors, and the unified evaluation standard has not been formed. In this situation, the application of the victim's fault is difficult in the judicial practice. This will lead to the same type of cases without the same and reasonable evaluation as they should have been. With regard to the influence of its fault on the evaluation of criminal law, the concrete problems are analyzed concretely in combination with the concrete situation. Moreover, the degree of influence of various factors on the criminal is bound to be different, so we should not confuse it. As a kind of factor which can be considered by the criminal law, the victim's fault plays its due role in the criminal law evaluation of the criminal, which can be divided into the criterion of the establishment of the elements of the crime. Furthermore, if the crime is established, it can be considered as a factor to reduce the criminal law evaluation of the minor offender. First of all, this paper discusses the basic components of the victim's fault. Then it expounds the theoretical basis and origin of influencing sentencing, the theory of fault sharing, the theory of reprehensible reduction, the theory of expectation possibility and the theory of self-responsibility-giving into the scope of enumeration, which explains the basis of influence and analyzes it. This paper enumerates the influence of the fault of the victim on the evaluation of the criminal law, and at the same time explains the influence of the fault of the victim on the criminal evaluation of the criminal law, which can be divided into two parts: determining whether the crime is founded or not and how to decide the penalty of the offender. The consideration of the victim fault is a missing link in the criminal law of our country. On the basis of the actual situation of our country, we can learn from the advanced legislation and practical experience of foreign countries in order to make the criminal law of our country more perfect. The victim's fault has a certain effect as a discretionary circumstances of sentencing, but because it is difficult to find its trace in the criminal law system, the role of the victim in practice is also limited. The adverse consequence of this situation is that the perpetrators may be unfairly and reasonably sentenced, and that the basic task of criminal law is to guarantee the function of human rights. Therefore, it is imperative that this unfair situation be changed, Therefore, the influence of the victim's fault on the establishment of criminal law evaluation is very necessary. Finally, at the legislative level, we should adopt the legislative model of general rule and sub-rule, and make suggestions on sentencing judgment in the general rule, and the specific provisions on the fault of the victim should be added to the specific crime. In order to deal with specific cases with the fault of the victim. In addition, the malpractice brought by the application of victim's fault is discussed in order to promote the perfection and development of victim's fault.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D924.1
本文编号：2167542
[Abstract]:Crime and murder are two aspects of crime, just like two sides of one coin. Under the joint action of the victim and the criminal, the final result of the crime is "produced", and the victim fault plays a vital role in the whole process of crime formation. The victim's fault is an important factor to promote the crime and result in the crime in many criminal cases. There is no doubt that it is biased to only punish the offender, and the neglect of the victim's fault will lead to the appearance of unfair results. This will inevitably lead to the intensification of social contradictions, rather than the resolution of social contradictions. Therefore, it is necessary to include the force of the victim's fault on the final result of the crime when there are some cases of victim fault and the criminal law is evaluated, and the degree of this necessity is very important. And according to the size of the wrong behavior to consider. The fault of victim is a kind of criminal law as a discretionary circumstances of sentencing juxtaposed with many other factors, and the unified evaluation standard has not been formed. In this situation, the application of the victim's fault is difficult in the judicial practice. This will lead to the same type of cases without the same and reasonable evaluation as they should have been. With regard to the influence of its fault on the evaluation of criminal law, the concrete problems are analyzed concretely in combination with the concrete situation. Moreover, the degree of influence of various factors on the criminal is bound to be different, so we should not confuse it. As a kind of factor which can be considered by the criminal law, the victim's fault plays its due role in the criminal law evaluation of the criminal, which can be divided into the criterion of the establishment of the elements of the crime. Furthermore, if the crime is established, it can be considered as a factor to reduce the criminal law evaluation of the minor offender. First of all, this paper discusses the basic components of the victim's fault. Then it expounds the theoretical basis and origin of influencing sentencing, the theory of fault sharing, the theory of reprehensible reduction, the theory of expectation possibility and the theory of self-responsibility-giving into the scope of enumeration, which explains the basis of influence and analyzes it. This paper enumerates the influence of the fault of the victim on the evaluation of the criminal law, and at the same time explains the influence of the fault of the victim on the criminal evaluation of the criminal law, which can be divided into two parts: determining whether the crime is founded or not and how to decide the penalty of the offender. The consideration of the victim fault is a missing link in the criminal law of our country. On the basis of the actual situation of our country, we can learn from the advanced legislation and practical experience of foreign countries in order to make the criminal law of our country more perfect. The victim's fault has a certain effect as a discretionary circumstances of sentencing, but because it is difficult to find its trace in the criminal law system, the role of the victim in practice is also limited. The adverse consequence of this situation is that the perpetrators may be unfairly and reasonably sentenced, and that the basic task of criminal law is to guarantee the function of human rights. Therefore, it is imperative that this unfair situation be changed, Therefore, the influence of the victim's fault on the establishment of criminal law evaluation is very necessary. Finally, at the legislative level, we should adopt the legislative model of general rule and sub-rule, and make suggestions on sentencing judgment in the general rule, and the specific provisions on the fault of the victim should be added to the specific crime. In order to deal with specific cases with the fault of the victim. In addition, the malpractice brought by the application of victim's fault is discussed in order to promote the perfection and development of victim's fault.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D924.1
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