论文部分内容阅读
用被害人不当行为取代被害人过错之概念,虽然也包含主观的价值判断,但在犯罪之互动场域更能体现该行为给对方带来的客观损害。从刑法规范层面思考,能作为量刑情节考量的被害人不当行为应该分为两类,即作为法定量刑情节的被害人不当行为和作为酌定情节考量的被害人不当行为;前者是指实质性引发了犯罪加害行为之被害人行为,后者指与犯罪加害行为及后果有密切关联的被害人行为。对作为量刑情节的被害人行为的“差序化类型”研究,旨在为刑事责任裁量的量化提供指导。
Although the notion of victim misconduct replaced by victim misconduct, though it also contains subjective value judgments, it can objectively damage the other side in the interactive area of crime. From the aspect of criminal law norms, the victim misconduct which can be considered as the circumstances of sentencing should be divided into two categories, that is, victim misconduct as a legal sentencing episode and victim misconduct which is considered as a discretionary circumstance. The former refers to the crime that caused substantive crime Behavioral victim behavior, the latter refers to the behavior and the consequences of criminal acts are closely linked to the victim behavior. The study on the “type of differentiation” of victim behavior as a measure of sentencing is intended to provide guidance on the quantification of criminal liability.