On The Definition Of Imaginary Defense

Defending instinct is the indispensable requirement for human to survive and multiply. Meanwhile, defending nature is accepted by the criminal law in many countries and justifiable defense is taken as the legal action. However, many countries make necessary restrictions on defense and separate justifiable defense from imaginary defense as society-based law is being substituted by right-based law. Therefore, justifiable defense based on right to self-defense is supposed to be legal behavior, but imaginary defense is to be given negative evaluation and supposed to commit a crime because of subjective offence and objective detriment.There are some phenomenons which often come across in judicial practice is that someone makes harm to the innocent as a result of his subjectively mistaking some imaginary menace for the authentic. However, the author finds that there are few works on imaginary defense and much debate in the study circle. This situation is not only playing a role as a guideline for judicial activities instead of making a big trouble. And in practice, there are only the concepts and punitive rules of justifiable defense and excessive defense and none of articles of imaginary defense included in our criminal law. Meanwhile, the researches on imaginary defense, in the academic circle, are rare and scattered and imaginary defense is only referred to in some chapters about justifiable defense. Consequently, it is difficult for us to distinguish whether some action similar to imaginary defense should be defined imaginary defense or not and how to penalize. As a result of this circumstance, it is necessary for the author to make a systematic combing to contribute to the future study and judicial practice.This article is divided four chapters. The author takes a case as the breakthrough to expound many aspects, including the notion, scope, feature and offence of imaginary defense. The first chapter elaborates the court decision and controversial focus. In this chapter, three controversial problems are discussed, such as whether Xieliqiang’s behavior should be supposed to be imaginary defense; whether imaginary defense can commit intentional crime; whether imaginary defense includes the circumstance that the defense behavior is implemented at the wrong time; The second chapter defines the Xieliqiang’s behavior from the perspective of notion, constitutive requirement, scope etc., and then mainly discusses whether imaginary defense can be supposed to commit intentional crime and whether there exists the question about defense time. In the third chapter, the auth or mainly analyzes the common formula to define imaginary defense and makes confirmatory analysis of the common formula according to the case happed to Xieliqiang. The fourth chapter is epilogue and mainly refers to the notable problem during the Process of defining imaginary defense.