Study On Defensive Consciousness

The Criminal Law of the People's Republic of China prescribes that legalization of defensive consciousness is essential for tenability of justifiable defense. Defensive consciousness legalization is judged via logical backward reasoning on defenders objective behaviors. Incompleteness and hysteresis exist in the process that defensive consciousness legalization is identified according to cognitive method and procedure on subjective element of crime. The contradiction between legal natures of justifiable defensive consciousness and subjective element of crime negates the base of their sharing the same identification criteria. As legalized consciousness, justifiable defensive consciousness is impossible and not required to have all elements of subjective consciousness. Thus the identification criteria for defensive consciousness should not be as strict as that for subjective element of crime.Subjective state in the sense of criminal law is stressed in both theoretical jurisprudence study and juridical practice, while research production is abundant in this field. However, all studies are carried out on such a theoretical formula that justifiable defense is first of all a kind of criminal behavior. A standpoint of this thesis is that justifiable defense is not criminal behavior and defender's subjective element does not contain criminal nature, an opinion has been common in traditional countries of continental legal system. But this theory cannot be transplanted into China, whose criminal law system is entirely different from continental law countries'. Thus, independent and universal analysis and summarization on defensive consciousness is essential for impersonal, just, reasonable crimination and fulfillment of justifiable defense equipment's functions.As the structuring and operation of legal systems are guided by certain values, justifiable defense system, as an important criminal law system, should be functioning under the principle of legal fairness and value of order. The methods of recognizing, analyzing, and identifying defensive consciousness legalization is important to the identification on tenability of justifiable defense, valuable for the fulfillment of defense system's safeguard function on the rights of justifiable defenders, tortfeasors, and suspected tortfeasors; essential for the perfection and correction of justifiable defense system for the purpose of better tallying with its value presetting. Besides, another function of defense system is encouraging citizens to fight against criminal behaviors, protecting the jura personarum and property rights of nation, groups, and citizens from infringement. However, the cognitive methods and procedures for crimes are still used for analysis on defender's subjective state in juridical practice. That has caused the failure in legal identification of many defensive behaviors, blocked the fairness value of law from rooting in theminds of people, degraded the order value of law to a certain extent, and boosted positive self-suggestion in the minds of perpetrators and potential criminals. This thesis is divided into six parts to expound, the above problems. PartⅠis analyses on the meaning of defensive consciousness as well as current study on thistask. The intension of defensive consciousness decides our cognition on its essence and delimit its own extension. For the cognition of such a purely subjective concept, the only and scientific way is starting from its extension. Thus the cognition on the meaning of defensive consciousness is of great importance to the correct analysis on the structural function of this concept. On the other hand, existing research achievements are the origin and guidance of restudy, so summarization on current defensive consciousness studies is essential for the realization of this thesis'value. PartⅡis the study on defensive consciousness'content. Defender's subjective moral actionshappening during defensive behaviors are called defensive consciousness. Part of these moral actions are indispensable for the scientific identification of justifiable defense's legal nature. And these indispensable actions are categorized into will factors and cognitive factors according to different functions like their effects on defense driving, correction during defense, guidance on the goal of behaviors. And PartⅡexpounds how the will content and cognitive content act on behavior. PartⅢis analysis on the value of whole defensive consciousness in line with the basic value oflaw. The entire legal system is a net composed of different values, where justifiable defense system is a node. The structural function of defensive system is how it can integrate into the whole value net of legal system. The cognition, combination and extraction of subjective elements play an important part in the value realization of justifiable defense system, although the subjective elements of justifiable defense does not determine the entire value of the defense system. Part IV is mainly about how to assess the effects on legal nature identification of defensivebehaviors from defender's wrong cognition on some factors due to subjective and objective reasons. The previous two parts of this thesis talk about recognizing justifiable consciousness according to normative and positive logic. But in reality, it happens that mistakes in cognition leads behavior away from preset direction. In this situation, we must analyze both the legal natures of subjective and objective factors.PartⅤis case study on defensive consciousness. As exception exists in legal phenomena, systematic defensive consciousness theory cannot summarize the subjective state of all defensive behaviors. Thus this part of the thesis analyzes three relatively unconventional defensive behaviors and suspected defensive behaviors.PartⅥis analysis on two relatively unconventional types of justifiable defensive behaviors prescribed by law, in the view of defensive consciousness. PartⅣis about special cases outside the defensive consciousness system, but PartⅤis about special cases inside the system. The special prescription of law on the latter cases and the drastic conflict between positive and negative behaviors lead to the hardship in realization of justice values. Thus there is extraordinary difficulties in cognition of the them. So this part of the thesis is a treatment of such cases. The last part systematically concludes that the whole thesis studies how to identify defensive consciousness scientifically, as well as the effects from every part of defensive consciousness contents on justifiable defense system, juridical practice, safeguard over fundamental human rights, and realization of criminal law values.