论文部分内容阅读
被害人承诺是司法实践常见的,但现行刑法并没有明文规定的一种阻却犯罪事由。其法理根据是,刑法以保护法益为目的,尤其是个人法益,被害人以自己的意思主动放弃的个人法益则不受刑法的保护,但前提是,被害人不能放弃自己的生命权益以及危及生命的身体健康权益。被害人承诺的成立,首先是承诺主体必须符合法律的规定,即具有刑事责任能力、达到刑事责任年龄,同时具有意思自治的能力;其次,承诺的对象只能是个人法益,对他人法益、国家法益做出的承诺无效;另外,承诺以被害人意思表示出来为必要,承诺时间只能是事前承诺。
Victims’ promises are common in judicial practice, but there is no explicit criminal offense precluded by current criminal law. The legal basis is that the criminal law to protect the interests of law for the purpose, especially the interests of individuals, the victim to take the initiative to give up their personal meaning is not protected by criminal law, but the premise is that the victim can not give up their life rights and life-threatening body Health rights. First, the promised subject must meet the law, that is, it has the criminal responsibility to reach the age of criminal responsibility and meanwhile have the ability to autonomy of purpose. Secondly, the promised object can only be the individual legal interest, the legal benefits to others, the legal interests of the state The promises made are invalid; in addition, the promise is expressed as necessary by the victim, and promised time can only be an advance promise.