On The Constitutive Component And Criminal Responsibility Of Imaginary Defense

This paper studies the matter of the security guard for cash transit shooting a depositor,and the jurisprudence of imaginary defense system that the case implies. After theoccurrence of the case, both the prosecution and the defense sides made a fiercedebate aroud the determination of the case nature. The procuratorate held that thebehavior of defendant Zhu constituted the crime of intentional homicide, whiledefendant Zhu proposed that he had no subjective intent of killing the victim, and shotthe victim for assuming that he would rob the escorted money. The counsel fordefendant Zhu held that Zhu’s behavior was imaginary defense, which should beidentified as negligence causing death. The court in the judgment supported theprosecution side’s determination of the case nature. Throughout the dispute, it is notdifficult to see that the most controversial issue which impacts the determination ofthe case nature is whether defendant Zhu’s behavior constitutes imaginary defense. Aslong as this problem can be resolved, the dispute above will disappear. Based on thisconsideration, the paper will attempt to make a systematical summary of thecomponents and criminal responsibility of imaginary defense. Our country’straditional three-components doctrine of imaginary defense constitution can not bematched with imaginary defense’s concept, resulting in an embarrassing situation thatnumerous cases in line with its constituent components are not part of imaginarydefense. Therefore, it is necessary to re-examine and re-construct the constituentcomponents of imaginary defense. Taking into account the imaginary defense’sparticularity that lacks for the cause of condition for justifiable defense, the primaryconstituent component of imaginary defense in consequence is that illegal violationdoes not exist objectively, which is the touchstone of distinguishing imaginarydefense from other defensive mistakes. To emphasize that the unlawful infringementis imagined by the actor does not mean he can woolgather unconstrainedly, on thecontrary, the imaginary defense actor’s “imagination” must have certain objectiveprerequisite and rational basis; To constitute imaginary defense, the actor is alsorequired to have the subjective intention of defense, which is the source of imaginarydefense’s minor society harmfulness compared to the general intentional crime; Inaddition, in order to distinguish imaginary defense from defense at wrong time,defense with wrong limit, especially excessive defense, it requires the conditions oftime and limit for imaginary defense. The case of the security guard for cash transit shooting a depositor fully complys with the above five constituent components ofimaginary defense, and criminal responsibility should be investigated for imaginarydefense. After clearing Zhu’s behavior of imaginary defense, the last “peak” to climbwhen analyzing the disputes of both the prosecution and the defense sides as well asthe court’s judgment is a problem on the criminal responsibility’s identification ofimaginary defense. Imaginary defense belongs to cognitive mistake of facts, andshould be handled in the light of cognitive mistake of facts, thus obstructing theintention’s founding. Based on whether the behavior’s wrong cognition about illegalviolation can be avoided, imaginary defense may constitute negligent crime oraccident. Defendant Zhu bears negligent or grossly negligent liability for victim Ji’sdeath, and the law clearly stipulates the crime of negligent homicide under thiscircumstance. Therefore, defendant Zhu’s behavior belongs to imaginary defense, andhe should be punished for crime of negligent homicide according to law.