On The Punishability Of Fortuitous Defense

In the judicial practice, accidental defense due to its "legal" appearance often confuse people field of vision.In fact, accidental defense conforms to the subjective transgression and objective illegal elements, constitute a crime.In our country,the main point of view of criminal law caim that punishment of accidental defense.In recent years,the new trend which represented by professor Zhang Mingkai reported that accidental defense is not penalty on the theory of act utilitarianism and result has no value.This paper is divided into five parts,aims at discussing the punishment of accidental defense and put forword theoretical basis of punishment of accidental defense.The first part of this article start with the concept and characteristics of accidental defense,analysis specific provision about accidental defense of German and Japanese criminal law, and put forward the punishment of accidental defense.The secend part of this article,put the Law principles of the value of tstatus as the first theoretical basis to support the punishment of accidental defense.From the point of view of jurisprudence,on laying a solid theoretical foundation for the construction of full artical,discussion freedom,order and justice of method, reflection in the accidental defense and the supportting reasons for punishment of accidental defense.The third part of this article in the basis of theoretical support, focus on punishment of accidental defense and the measure of legal interest.This is a most fundamental theories to support punishment of accidental defense.Refute the views and reasons on accidental defense can not be punished by the act utilitarianism and legal interests measure doctrine, and at the same time analysis of the legitimate right to defense theory, casual defense from the opposite argument that can be fined.The forth part of this artical discussed the most critical part of the punishment of accidental defense,that is punishment of accidental defense and defense consciousness.Through the analysis of defense consciousness necessary theory and criticism unnecessary theory to put forward defense consciousness necessary theory is a more reasonable point of view, and support the punishment of accidental defense. Stressed that there is no defense consciousness could not be justifiable defence, should bear criminal responsibility.The fifth part of this artical pay more attention on handling of accidental. Since the chance to defend the punishment should be held criminally liable, the part of occasionally defense should how to deal with further analysis.To refute the accidental defense does not hold the doctrine of crime.Countering the innocent theory and binary theory,claimed that accidental defense is crime accomplishment based on illegal dualism claims accidental.Taking into account factors such as the behavior society harmfulness aspects agreed to surprise effect of accidental defense behavior as sentencing plot.