被害人承诺问题研究

On the Acceptance of the Victim

被害人承诺,是现代社会广泛认可、但我国刑法中没有明文规定的排除犯罪性事由。其法理基础是,刑法以保护个人利益为首要任务,被害人自愿放弃的利益不在刑法的保护范围之内。被害人承诺的适用范围,应是除了侵害生命之外的一切侵害个人利益的犯罪;被害人承诺的成立条件,必须从体现被害人的真实意思的角度来考虑;被害人只有在有关法益处分的决定上具有错误的场合,其承诺才无效;推定承诺,兼具被害人的现实承诺和紧急避险的特征,其适用要受到严格限制。

Although it is widely recognized by modern society that the acceptance of the victim is one of the reasons to remove criminality, Chinese criminal law does not prescribe it. Its theoretical foundation is that the criminal law takes the protection of individuals＇ interests as its principal task, so the interests abandoned voluntarily by the victim are beyond its area of protection. The application of the acceptance of the victim is to all the crimes encroaching on personal interests except on life. To establish the acceptance of the victim, we must take account of the victim＇ s genuine will. It will be void if the victim makes the decision of abandoning legal interests by mistake. Only when the victim has already made acceptance in very necessity, we could construct his/her real consent of it. Moreover, the application of construction should be restricted strictly.