对于同意他人造成危险,存在有罪论和无罪论两种对立观点。有罪论以被告人单独支配了损害结果的发生为理论前提,以共犯原理为理论基础来论证被告人构成犯罪,是基于对此类案件的规范结构的误解和对共犯原理的误用,在理论逻辑上存在难以化解的困境。而支持无罪论的两种主要学说——被害人承诺理论和自我答责理论——实质上均没有很好地回答“被害人对危险的接受为什么可以否定被告行为的违法性”这个问题。在同意他人造成危险场合,实际上是被害人自主决定开启和进入可能损害其法益的危险流程,要求他(她)自己对损害结果负责,是刑法尊重被害人自我决定权的表现;被告人的行为因没有侵犯被害人的自我决定权而缺乏构成违法的前提条件;基于此类案件的规范特性,刑法不应为了达到惩罚目的而基于家长主义立场抵制被害人的自我决定权;不处罚犯罪人也是由刑法在法秩序中的体系性地位所决定的应然选择。 There are two opposing points of guilt and innocence on the danger of consent to others. The theory of guilty conscientious that the defendant constituted a crime based on the principle of accomplice, based on the theoretical premise that the defendant had dominated the occurrence of damage, was based on the misunderstanding of the normative structure of such cases and the misuse of the principle of accomplice. In theory There are logically difficult to resolve the plight. The two main theories that support the theory of innocence - the theory of victim commitment and the theory of self-responsibility - do not actually answer well the question “why the victim’s acceptance of danger can deny the defendant the illegal act”. In agreeing to create a dangerous situation for others, the victim actually decides to open and enter a dangerous process that may harm his legal interests, asking him or her to be responsible for the result of the damage, which is a manifestation of the criminal law’s respect for the victim’s right of self-determination. Based on the normative characteristics of such cases, the criminal law should not boycott the victim’s right of self-determination based on the position of paternalism in order to achieve the purpose of punishment. The non-punishment of offenders is also regulated by criminal law The legal system in the order of the system determined by the choice.