The Systematic Thinking Of Defensive Behavior Patterns

The self-defender defends one’s legal interests as well as violates the other’s,which brings some trouble on judicial identification. The theory of criminalconstitution shows how the judge determines a behavior to be a crime or not. It is themethodology of the identification and shows the basic attitude of the legal order. Sothe theory of criminal constitution must carry on its responsibility on the identificationof the defensive behaviors. This article takes the nature of different defensivebehaviors as the basic entry point to explore and refine the existing theories ofcriminal constitution and to revised theories of criminal constitution as a defensebehavior identified path, to clarify the mode of defensive behaviors’ identification.Chapter one is divided into two parts. The first section describes the basicconnotation of the defensive behavior, as well as three characteristics: invasive,complex subjective identification, as well as the game of value measurement. Thesecharacteristics play an important role on the Identifications of defensive behaviors.The second part introduces the concept of the conviction rules as well as the mainfunctions of the conviction rules. We must pay attention to these principles when weconstruct the conviction rules:1) the stability of the application of the law,2) theimprovement of the theoretical exploration,3) to resolve the conflicts and balance thetwo parties,4) to build the standardization and guide the public.The second chapter compares and analyzes some kinds of the conviction rulesfrom the perspective of self-defense. Limited to the length and the author’s researchscope, this article selects these following conviction rules:1) the theory of the fourelements of criminal constitution;2) the theory of conviction rules proposed byProfessor Zhang Mingkai;3) the theory of negative criminal elements in criminalconstitution;4) the theory of rational purpose system proposed by Professor ClausRoxin. Among these theories, the theory of rational purpose system proposed by Professor Claus Roxin should be reformed to adapt to China’s judicial system.The chapter three puts forward some suggestions on the building of criminalconstitution, as well as illustrates how each phase impacts the description of defensivebehaviors. On the amendment of the criminal constitution theory, paper argues that:1)the construction of the criminal constitution theory should base on the theory ofDualism, there is a theoretical basis for the subdivision of the subjective aspect inChina’s Criminal Law;2) the circumstances of crime (especially the circumstances ofconviction) should be Identified in the phase of wrongfulness, and it should beIdentified before the justifiable cause.3) Unrecoverable personal rights (Including theright to life and sexual autonomy) are not comparable between each other, so onecannot violate the other’s unrecoverable personal rights and defend himself with ajustification of urgent danger prevention;4) the element of expected possibility cannotnegate criminal culpability, it can only decide the degree of culpability;5) asinvestigated the personality factors as well as specific environment, possibility ofknowledge of illegality is the basis of the investigation on the liability of intentionalor negligent, there are differences between the subjective of wrongfulness and thesubjective of blameworthiness. On the description of defensive behaviors, paperargues that:1) if an act is In accordance with the Behavior of the constituent elements,it means this act violates the legal interests, the law must pay a close attention to it;2)the phase of wrongfulness filters the legitimate part of the defensive behaviors, thispart cannot be culpability;3) in the identification of imaginative defense, consideringthe personality factors and the specific environment, there will be a certain possibilityof not guilty;4) in the phase of criminal punishment, according to the principle of theprohibiting repeatable evaluation, victim’s fault and the possibility of knowledge ofillegality can hardly play a positive impact to alleviate the guilt of the self-defender.