关于被害人同意理论的研究
发布时间：2018-10-05 10:42
【摘要】：由于我国刑法只明文规定了正当防卫和紧急避险这两种违法阻却事由，只有通过对刑法条文的规范解释，被害人同意才能作为一种超法规的出罪事由。本文将在三阶层犯罪论体系的语境下对被害人同意理论进行探讨，我主张使用“同意”这个概念，不具体区分为“合意”和“承诺”，而统一采用被害人同意这个概念。在三阶层犯罪论体系中对被害人同意的理论基础、体系地位、构成要件要素和法律效果等方面进行深入地探讨和研究，从而解决现实中的疑难案件。 多大数学者主张法益衡量说是被害人同意的理论根基，具有合理性和说服力，在德国、日本等大陆法系刑法理论界占据通说地位。被害人同意的功能和作用只能在犯罪论体系中加以探讨，判断行为人的行为是否符合构成要件，是一种事实判断，判断行为人的行为是否具有违法性，则是一种价值判断，大量的疑难问题只有通过价值判断才能得到合法、正当的解决。被害人同意具有阻却构成要件符合性、违法性阻却事由和减轻刑事处罚等多种刑法功能。 判断犯罪是否成立，是按照先客观判断再主观判断，先实事判断再价值判断，先形式判断再实质判断。先进行构成要件符合性判断，再进行违法性判断。构成要件符合性是事实判断，而违法性是价值判断，事实判断先于价值判断。犯罪构要件符合性的判断是违法性的判断的根据，，符合犯罪构成要件的行为就能推断行为具有违法性，这也是罪刑法定原则的实质体现。超法规的违法性阻却事由是将形式上具有违法性的行为通过实质违法性的判断，使行为排除违法性。
[Abstract]:Because the criminal law of our country only stipulated the legitimate defense and the emergency to avoid the danger these two kinds of illegal obstruction matter, only through the standard interpretation to the criminal law article, the victim consent can be regarded as a kind of super regulation crime reason. In this paper, we will discuss the theory of victim consent in the context of the three-class crime theory system. I advocate the use of the concept of "consent", not specifically divided into "agreement" and "commitment", but the unified use of the concept of victim consent. In order to solve the difficult cases in reality, the theoretical basis, the status of the system, the elements of the elements and the legal effect of the victim's consent are discussed and studied in the three-class crime theory system. The multiple mathematics advocate that the theory of legal interest measurement is the theoretical foundation of the victim's consent, which is reasonable and persuasive, and occupies a general position in the criminal law theory of Germany, Japan and other civil law systems. The function and function of victim's consent can only be discussed in the system of crime theory, it is a kind of fact judgment to judge whether the actor's behavior conforms to the constitutive elements, and it is a kind of value judgment to judge whether the actor's behavior is illegal or not. A large number of difficult problems can be solved legally and properly only through value judgment. The victim's consent has many criminal law functions, such as conformance to the constitutive elements of obstruction, obstruction of violation and mitigation of criminal punishment. Whether the crime is right or not is judged by objective judgment, subjective judgment, practical judgment, value judgment, formal judgment and substantive judgment. First, to judge the conformance of the constituent elements, then to judge the illegality. Conformance of constitutive elements is fact judgment, and illegality is value judgment, fact judgment is prior to value judgment. The judgment of conformance is the basis of the judgment of illegality, and the behavior that accords with the constitution of crime can be inferred that the behavior is illegal, which is also the essential embodiment of the principle of legality of a crime. The reason of breaking the law is that the illegal behavior is ruled out by the judgment of the nature of illegality.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924
本文编号：2253081
[Abstract]:Because the criminal law of our country only stipulated the legitimate defense and the emergency to avoid the danger these two kinds of illegal obstruction matter, only through the standard interpretation to the criminal law article, the victim consent can be regarded as a kind of super regulation crime reason. In this paper, we will discuss the theory of victim consent in the context of the three-class crime theory system. I advocate the use of the concept of "consent", not specifically divided into "agreement" and "commitment", but the unified use of the concept of victim consent. In order to solve the difficult cases in reality, the theoretical basis, the status of the system, the elements of the elements and the legal effect of the victim's consent are discussed and studied in the three-class crime theory system. The multiple mathematics advocate that the theory of legal interest measurement is the theoretical foundation of the victim's consent, which is reasonable and persuasive, and occupies a general position in the criminal law theory of Germany, Japan and other civil law systems. The function and function of victim's consent can only be discussed in the system of crime theory, it is a kind of fact judgment to judge whether the actor's behavior conforms to the constitutive elements, and it is a kind of value judgment to judge whether the actor's behavior is illegal or not. A large number of difficult problems can be solved legally and properly only through value judgment. The victim's consent has many criminal law functions, such as conformance to the constitutive elements of obstruction, obstruction of violation and mitigation of criminal punishment. Whether the crime is right or not is judged by objective judgment, subjective judgment, practical judgment, value judgment, formal judgment and substantive judgment. First, to judge the conformance of the constituent elements, then to judge the illegality. Conformance of constitutive elements is fact judgment, and illegality is value judgment, fact judgment is prior to value judgment. The judgment of conformance is the basis of the judgment of illegality, and the behavior that accords with the constitution of crime can be inferred that the behavior is illegal, which is also the essential embodiment of the principle of legality of a crime. The reason of breaking the law is that the illegal behavior is ruled out by the judgment of the nature of illegality.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924
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