Study On Excessive Imaginary Defense

Excessive imaginary defense is a special situation which in precondition of imaginary defense. There is no illegal damage actually, but the actor thinks mistakenly that his behavior is justifiable defense. And his imaginary defense beyonds the limits, brings significant harm to innocent others. It has four features such as mistake, defense, excessive and damage. There are three types of excessive imaginary defense: inten- tional, involuntary and accident.It's still form excessive imaginary defense when the actor is mistaken for the existence of serious violent crimes as special defense, or refers to the person without criminal liability, but not the defense of time error or object error. The single-error excessive imaginary defense is intentional, but the double-error is not. The offence form of excessive imaginary defense can not be the direct intentional, the specific forms are fault of negligence, over-confidence and indirect intentional.Illegal damage in excessive imaginary defense is objective. It should be based on the general standard of the third person to determine the illegal damage exists or not, and whether the misunderstanding can be avoided. The judgement of appropriate limit should be combined with the specific circumstances, and in accordance with the principle of fairness. The actor needn't have a clear understanding of whether his behavior is out of limits. The justifiable defense to excessive imaginary defense is allowable.Excessive imaginary defense may be forms intentional crime, involuntary crime or accident, it's not proper to apply the punishment of over-defense. But it's proper to give a reduction punishment on the basis of actual situation. Compared to foreign Criminal Law, our Criminal Code is lack of error of fact. It is necessary to add error of fact, to provide a legal basis for the punishment of excessive imaginary defense.