论过失犯中被害人同意与被害人自陷风险的关系

On the Relationship between the Victim Consent and the Victim’s Risk of Self-Incrimination in the Case of Negligence

被害人同意与被害人自陷风险均隶属于被害人教义学体系,但如何处理两者的关系存在较大争议。当前的有力见解是将被害人自陷风险理解为被害人同意的特殊类型,并运用同意理论解释自陷风险情形何以排除刑法归责。然而,自陷风险问题难以在同意理论之中“求解”。从同意结果说的角度分析,统合同意与自陷风险的观点扭曲了被害人真实的自我决定,属于“不诚实的拟制”;从同意行为说的角度分析,统合论的见解导致同意的“客观化”,偏离了同意的经典法理。基于被害人同意与被害人自陷风险在自我决定内容方面的根本差异,有必要将它们区别为两个独立的问题,并在教义学层面为二者配置不同的解释方案。前者沿用经典的同意理论,后者则可适用被害人自我答责原则。

Victim consent and victim risk of self-incrimination both belong to the system of victimology,but the relationship between the two is controversial in theory.One convincing view is that victim risk of self-incrimination should be understood as one of the special types of victim consent,and that the doctrine of consent should be used to explain how situations of risk of self-incrimination preclude criminal law imputation.However,the problem of risk of self-incrimination is difficult to“solve”within the doctrine of consent.From the perspective of the outcome of consent theory,the idea of unified consent and risk of self-incrimination distorts the victim’s true self-determination and is a“dishonest fiction”;from the perspective of the act of consent theory,the unified view leads to the“objectification”of consent and deviates from the classical jurisprudence of consent.Based on the fundamental differences in the self-determined content of victim consent and the victim’s self-determination,it is necessary to distinguish them as two separate issues and to allocate different interpretative solutions to them at the doctrinal level.The former follows the classical doctrine of consent,while the latter can be considered with the principle of victim self-responsibility.