论得被害人承诺

得被害人承诺的行为是否阻却违法是一个备受争议的问题,法学界的通说是有条件的接收得被害人承诺的行为阻却违法,其适用范围应该仅限于被害人有权处理的私法益。其阻却违法的要件应该是,有承诺能力的承诺权人以明示或默示的方式,在侵害行为发生之前,任意性地表达对特定侵害结果的承诺,同时,还要求侵害人对承诺有明确认识。

On the Behaviors of Receiving an Answer of Homicide Victim

Whether the behavior of receiveing an answer is elimination of misfeasance is an issue arising hot debate.The acceptable opinion is that the behaviors of receiveing an answer of homicide victim on a certain conditions is elimination of misfeasance.Considering from the historical background that the theory was invented,its applicable scope should be limited within that the victim has the right to deal with.The key components should include the promisee who has promising ability,the manner that is either explicit or implicit,the time that is before the aggrieve behavior,the promise of random expression to specific aggression result and the clear understanding of the victim to the promise.