Excessive Defense Of Subjective Culpability Research

The defense when the subjective fault is the justifiable defense system an important content, there has been a lot of controversy. Determining the subjective culpability in relation to the crime with the non-crime, this crime and that crime and sentencing application and other aspects of the problem. However, the differences between the theory and the criminal law on the defense when the conviction and sentencing of huge differences. The criminal law of our country is in the twentieth paragraph2of the corresponding provisions general provisions, but did not specify the subjective guilty, while also not set up a separate corresponding counts. Therefore, in the judicial practice for such similar case also appears relatively vague, conviction and sentencing of the results are very different and judicial impartiality. Based on this, this article will defend excessive subjective fault analysis.This paper is divided into three chapters. The first chapter of the defense when the concept and feature of the analysis, pointed out that the self-defense and self-defense is two different concepts, there is no relationship, nor is general with special relationship. Over-defense behaviors and self-defense at the same time from the defensive behavior, both belong to the parallel relation. At the same time, pointed out that the over-defense behaviors "legitimacy" for understanding "rationality", which can include legality, but not necessarily the legitimacy act. Draw the defense when defined as:Defense in unlawful infringement behavior cognition premise, based on their own will and defensive behavior, this defensive behavior obviously exceeds the limits of necessity, and the offenders and cause significant damage.This paper is divided into three chapters. The first chapter of the defense when the concept and feature of the analysis, pointed out that the self-defense and self-defense is two different concepts, there is no relationship, nor is general with special relationship. Over-defense behaviors and self-defense at the same time from the defensive behavior, both belong to the parallel relation. At the same time, pointed out that the over-defense behaviors "legitimacy" for understanding "rationality", which can include legality, but not necessarily the legitimacy act. Draw the defense when defined as:Defense in unlawful infringement behavior cognition premise, based on their own will and defensive behavior, this defensive behavior obviously exceeds the limits of necessity, and the offenders and cause significant damage.The second chapter is the key; the subjective guilt was analyzed, including the meaning of sin, defense interesting analysis and subjective fault form analysis. Defense intention is the same person activity, is to determine the subjective guilty based. Theory of meaning, defense controversy centers on doesn’t say and necessary two doctrines, that means necessary defense when necessary, don’t hold opposing views. And the article thinks, the defense when events can be divided into three processes:unlawful infringement, the understanding of defensive behavior generation, when the outcome, in this process, the defense meaning is predicated on the understanding of unlawful infringement. Based on knowledge, if instinctive defensive behavior, then the defense means for the defense of cognition, is the defense when necessary; but if produce clear for the protection of legitimate rights and interests of the implementation of defensive behavior purpose of defense, defense means the same as for defense purposes, only exists in part of the defense when case, for the selection of elements. Defense intention of defense should be understood as rationality, rather than necessarily legitimacy. Results no value theory thinks, the purpose of criminal law is to protect the legitimate rights and interests, and the illegal essence is the infringement of legal interest or to legal threats. Over-defense behaviors, rational defense of meaning will still produce illegal results, because of its dominant defensive behaviors and the result is excessive, infringe upon the lawful rights and interests. And that the defense is defined as the cognitive meaning of defense accords with the actual case. In addition, this chapter from defense meaning perspective, that passion erupts defense also exist defense cognition; defense challenges with other criminal purpose and a lack of defensive intention cannot be established in self-defense; occasional defense and general crime have no essential difference, behavior and defense between results only in the presence of time of the accident, the lack of defense awareness so it cannot be established in self-defense.On the basis of this, this chapter through to the defense when the subjective culpability theory to carry on the analysis, further pointed out that excessive defense can be divided into:a defense, with purpose or motive of justifiable defense; two, does not have a defensive purpose or motive of justifiable defense. Subjective offence determination from the defense of human cognitive and volitional factors, combined with the actual case analysis. Finally come to the defense when subjective offence includes indirect intention, negligence and overconfident negligence, but not including direct intention form.The third chapter discusses the subjective fault of the impact of the conviction and sentencing. In judicial practice, should be on the subjective culpability form made precisely defined, distinction between this crime and other crime. And then determine when sentencing factors should be considered, including:unlawful nature and severity of cognitive and defense, defense, defense behavior motive and purpose of nature, nature, when the rights and interests of the level, but do not include the public influence. Finally the applicable to surrender, recidivism and probation undertakes an analysis, think the defense when applied to confession; indirect intentional over-defense suitable for recidivism system, if they meet the conditions are not suitable for recidivism and probation, negligence and overconfident negligence crime recidivism system is not suitable, can be applied to probation.