试论被害人承诺的构成要件及其法律效力

很多国家的刑事立法都对被害人承诺问题作出了规定,我国刑法典虽然没有明确规定该问题,但在司法实践中已有所运用。被害人承诺阻却违法性的理论根据是被害人对于自己有权支配和处分的利益在不侵害公共利益的前提下放弃了刑法的保护。加大对被害人承诺理论的探讨具有非常重要的意义。

On Constructive Requisites and Legal Force of Victims'Commitment

Some countries have set forth the theory of victims commitment in their criminal legislations. In re-sponds, China has implicitly accepted and adopted that theory in their legal practices, though it is not expressly discovered in China＇s criminal legislations. The hasis of the theory of ＂victim＇s commitment hindering illegality＂ lies in the waiver, without the prejudice to or otherwise limit on the public interests, by the victim being suffered of the interests at its disposal and otherwise under its control, under the criminal law. Therefore, a further study on the theory of victims consent is vitally significant, which is also this paper proposed.