Self-defense Subjective Conditions Of Study

Self-defense is one of the illegal interruptive factors in the theory of criminal law; it is also an important system of criminal law in many countries. As to the subjective element of self-defense, how to comprehend the meaning of the phrase "for defense" is a controversial topic, the debate focuses on the intention of defense when the defender doing his defense behavior. There are two theories on the judge of illegal behavior: one is called "defense intention is indispensable", the other is called "defense intention is dispensable". For a long time, because of the absolutely influence of the behavior non-axiology, as to the subjective element of self-defense, the theory of "defense intention is indispensable" becomes the usual opinion. But in recent years, with the research on the result non-axiology, the theory of "defense intention is dispensable" is gradually accepted by people.The self-defense system of the Chinese criminal law also builds on the theory of "defense intention is indispensable", that is to say, when we judge the subjective element of self-defense, we not only consider the defense cognition factor of the defense consciousness, but also consider the intention of defense. This kind of strict judgment, usually excludes the following behavior from self-defense: (1) instinct defense behavior; (2) aggressive behavior under terrified or indignant conditions without defense intentions. Up to this, the article combines with cases, have a detailed discussing on the theory of defense consciousness. The article affirms such an opinion that defense consciousness is an indispensable element of self-defense, and meanwhile claims giving the meaning of defense consciousness a relaxed judgment; it also claims when we judging self-defense, we should emphasis the objective defense effect instead of restricting on subjective factors too much; especially on the judgment of self-defense, we can't request the defender must have defense intention and motivation.The article researches the issues that are relative to self-defense too, such as mutual illegal aggressive behavior, provocative defense, haphazard defense and defense for illegal benefit. It claims the following three opinions: (1) as to mutual illegal aggressive behavior such as mutual fight, and provocative defense, if they objectively aim at illegal aggressive behavior, they could be self-defense then; (2) as to haphazard defense, it is not self-defense because the defender without subjective cognition although his or her behavior objectively leads to defensive effect, it should be treated as innocent behavior since the defense doesn't bring illegal aggressive result; (3) as to defense for illegal benefit, in some case, if it can economize the cost of judicature, effectively solve a case, accelerate the criminal's repentance and achieve the effect of protecting legal benefit, and at the same time the defense accords some determinative conditions, it could be regarded as self-defense.The article begins with an old case of improper defense, aims at the debate on judging the defender's subjective element, analyzes thoroughly, and dissertates fully on the subjective element of self-defense by combining with correlative items of the present Chinese "CRIMINAL LAW" and some theories of criminal law from both China and abroad. Especially, it analyzes systematically on the relevant theories of defense consciousness. Meanwhile, the article also simply discusses the behavior which usually excludes from self-defense in criminal law, they are mutual illegal aggressive behavior, provocative defense, haphazard defense and defense for illegal benefit, and it gives some new viewpoints in the course of discussing. By these analyses, we can gradually form a clear and integrated frame while judging the subjective element of self-defense. We expect these analyses could contribute for the future's practical judicature work.The article is comprised of three parts and 18,000 words, and the article will make a separate analysis hereinafter:Part one: the case and bringing forward a question. In this part, the article simply analyzes the murder case happened in Tianjing in 2002, especially analyzes the focus of the case. By these analyses, it brings a afterthought on how to grasp the subjective element of self-defense.Part two: analyzing on the items and relevant theories. It Aims at the afterthought of part one, begins with correlative items of the Chinese "CRIMINAL LAW", and combines with some theories of criminal law from both China and abroad, systematically analyzes the theory of defense consciousness, and then, comparatively discusses several issues that are relative to the subjective element of self-defense and gives new viewpoints. This part is the main body the whole article, it mainly discusses the following issues: (1) the meaning of defense intention; (2) the status and significance of defense idea; (3) the basic theories for the establishment of the subjective element of self-defense; (4) the theories of defense consciousness; (5) issues are relative to the subjective element of self-defense.Part three: conclusions. This part mainly summarizes the viewpoints of issues are relative to the subjective element of self-defense, and basing on these viewpoints, combining with the case, the article makes some suggestions on the future's judicature work.