The Subjective Requirement Of Justifiable Defense

Justifiable defense system enjoys a worldwide significant status in criminallegislation, administration of justice and criminal law theory. In modern society,the disposal of the conflict between citizen’s right of self-defense and existentlaws relates to the establishment of modern value system, legislativearrangements and citize’ns faith to criminal justice system of justifiable defensesystem. Justifiable defense is a resistant attack of actor to an illegal act. Althoughit may objectively cause injure to illegal infringer, it does not constitute a crimesince the act is legitimacy and belongs to classical reasons exclude crime. Thejustification of justifiable not only displays on the objective stopping of illegalinfringe, but also has its subjective basis. The different requires on self defenderconcern directly whether justifiable defense reasonable or not.This thesis falls into four parts exclude introduction and probes intojustifiable defense system step by step.Chapter Two elaborates in detail about the primary meaning and content ofjustifiable defense and its subjective elements. The subjective element ofjustifiable contains two aspects: defense awareness and defense intention. Thispart also makes a careful statement of defense awareness and defense intentionand their diverse academic definitions.Chapter Three concerns the theoretical dispute of subjective elements ofjustiifable defense. In this part, the author mainly enumerates the attitude andcontroversy of this issue in German and Japanese criminal law academic circleand Chinese criminal law theory. In the German and Japanese criminal law theory,there is dispute between theory of necessary defense intention and theory ofunnecessary defense intention, while in China, theory of unnecessary defenseintention rises in recent years and the theory of necessary defense intentionenjoys a higher status all the time.Chapter Four discusses how to define the subjective element of justifiable defense-We deny the theory of necessary defense intention because this theoryobeys the legislation purpose, which is not conductive to protect citizen’s legalrights. Meanwhile, the argumentation of theory of necessary defense intention isalso questionable. This part also put forward the theory of necessary defensecognition and advocates to loosen the restraint of the content of defense purpose.The Conclusion expounds the relative specific issues of subjective element ofjustifiable defense, mainly including the recognition of mutual fight, instigationof defense and occasional defense and the focus of controversy.