Abstract

Info

Keywords:: victim’s agreement; victim’s approval; monistic theory and dualistic theory; systematic position

Abstract:: There are two types of victim’s consent in continental criminal law. One is victim’s agreement; the other is victim’s approval. Concerning the systematic position of victim’s approval in the three-level criminal system, legal scholars are divided on whether the victim’s approval is a reason for precluding of Tatbestand or for precluding of unlawfulness. The protected interests do not exist in the case of victim’s approval. When the objective attribution is a question of Tatbestand, that is to say, the value judgment for exculpation is allowed at this level, the victim’s approval ought to be the content of the level of Tatbestand as well. After the examination of criminal system with a precluding of Tatbestand, the judge could still declare the lawfulness of the action outside the criminal system. Both of the monistic and dualistic theories preclude the constitution of crime in practice. Only the dualistic theory holds that when the Tatbestand is fulfilled, the crime is consequently precluded. In the four-element theory of crime, the victim’s approval is a reason that can preclude the constitution of crime.