假定同意起源于德国民法学中的医疗侵权责任,后被联邦最高法院引入刑法领域并在刑法学界引起了热烈的讨论。假定同意,能够消除民事责任与刑事责任的不一致,促进法秩序的统一。假定同意在刑法教义学体系中的定位属于构成要件阶层的排除客观归责事由,排除行为的结果不法但保留着未遂的可罚性。假定同意的适用范围能够适用同意的犯罪构成要件,保护法益限于身体、自由、财产等个人法益。假定同意的判断基础,应当以被害人本人为准,在判断时应当将行为时存在的与被害人的真实意思有关的全部资料,从事后的角度进行盖然性判断。假定同意存在与否的证明责任应当由行为人负担。在运用“罪疑有利被告”原则时,不能仅仅依据假想的被害人同意的可能性进行判断,还必须有补强证据。 Assuming that medical tort liability originated in German civil law was later introduced into the criminal law field by the Federal Supreme Court and led to heated discussions in criminal law scholarship. Assuming consent, we can eliminate the inconsistency between civil liability and criminal responsibility and promote the unity of legal order. Assuming that the position of consent in the doctrinal system of criminal law belongs to the grounds of excluding objective obligee of the constituent elements, the result of the exclusion act is illegitimate but retains the attempted punitiveness. Assuming that the scope of application of consent can apply the elements of the agreed crime, the legal interests of protection are limited to the legal interests of the individual such as body, freedom and property. Assuming the basis for the determination of consent, the victim himself shall prevail. In judging, all information concerning the true meaning of the victim existing in the act should be used to make judgments based on the post-engagement perspective. The burden of proof on the assumption of existence of consent should be borne by the perpetrator. In applying the principle of “favoring the accused”, the judgment can not be based solely on the possibility of hypothetical victim consent, and there must be evidence of reinforcement.