论违法阻却事由之被害人承诺和危险接受

On Victim’s Commitment and Acceptance of Risk in the Matter of Illegal Deterrence

在学术史上,对被害人承诺和危险接受相关前沿问题的关注来源于刑事司法实践。尤其是在社会法律利益领域,即使被害人愿意承担风险,归根结底也应归责于行为人。事实上,被害人的承诺和接受危险本身都是被害人自我决定的体现,他们在对行为危险的认知上是一致的,但在对有害结果的接受和行为动机上却表现出相反的态度。若从行为动机上看,被害人承诺是为了以牺牲法定利益为代价换取利益,而危险接受则是为了在不牺牲个人利益的情况下从危险中获得利益,因此将两者等同是不恰当的。只有立足于被害人的视角,将行为人实施行为时的意志与被害人遭遇风险时的心理态度结合起来,才能准确地界分被害人承诺与危险接受。

In the history of scholarship, attention to cuttingedge issues related to victim commitment and risk acceptance has originated in criminal justice practice. Particularly in the area of sociolegal interests, even if the victim is willing to take the risk, it is ultimately attributable to the perpetrator. As a matter of fact, both the victim’s commitment and acceptance of danger are themselves manifestations of the victim’s self-determination;they are consistent in their perception of the danger of the act, but show opposite attitudes in their acceptance of the harmful outcome and their behavioral motives. If we look at the motivation of behavior, the victim’s commitment is to obtain benefits at the expense of legal interests, while the danger acceptance is to obtain benefits from the danger without sacrificing personal interests, so it is inappropriate to equate the two. Only by basing on the perspective of the victim and combining the will of the perpetrator when he commits the act with the mental attitude of the victim when he encounters the risk, can we accurately delineate between victim’s commitment and hazard acceptance.