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被害人承诺源自罗马法中“不可能对承诺者实施不法”的谚语,在当今社会,作为排除犯罪性事由,也得以广泛的认可。虽然我国刑法学者也普遍接受了该理论,但在我国的刑法中却没有明确的规定。其法理基础在于,被害人放弃自己的利益是其行使人格自由权利的自主权表现,刑法对于该利益不予保护。被害人承诺的成立须从主体适格、真实意思表示、承诺方式等角度考虑。
The promises that the victims have come from in Roman law have been widely recognized as crimes that exclude criminals in today’s society. Although China’s criminal law scholars generally accept the theory, but in our country’s criminal law there is no clear rules. The basis of its jurisprudence lies in the fact that the victim gives up his own interests as a manifestation of his autonomy in exercising his right to freedom of personality and the criminal law does not protect that interest. The establishment of the victim’s commitment must be considered from the perspectives of being fit, truthful, and promising.