| Accidental defense in criminal law theory is an important theory. It has the positive significance to perfect the criminal law problem related theory and guidance in the judicial practice. At the same time, study on accidental defense problem also relates to the criminal law an important problem is the problem of criminal law. In the mainland legal system criminal law theory, basic opposition with objectivism and subjectivism position, understand completely different on this problem. The objectivism of scholars support the results without the value theory.It thinks that the essence of illegality is based on objective law benefit behavior in violation of the law to protect the legal interest or threatening results. So accidental defense does not constitute a crime or accidental defense can constitute a crime shall be attempted, for such behavior not crime or criminal punishment. Subjectivism position scholars mostly support act without value theory. Illegal reference has also been characterized as an actor has violated the law regulating the order of the subjective malignant, therefore tend to think that constitutes a crime accomplished offense and the establishment of accidental defense.This paper first introduces the concept of accidental defence from the start, the collection and sorting out of relevant books and papers, and use the research methods of analysis, comparison method, experience summary method, emphatically from the results no value theory and behavior theory of value standpoint, analysis the essence of illegality, analyzed and summarized so as to classification, accident defense of the qualitative, crime, criminal penalties and other specific issues, and to understand the problem of accidental defense. Accidental defense refers to the subjective awareness but no defense objectively for the ongoing illegal violations carried out defensive behavior, different from justifiable defense and the error of cognition. It is fortuitous defense is justifiable defence lawful appearance, causing accidental defense qualitative and punishment into the discussion of problems. Results no value theory insists that the essence of illegality in violation of legal interest, accidental defence in the objective to protect the legitimate rights and interests and therefore does not constitute a crime, but there is no punishment may be. It is of no value theory holds that illegality is composed of act without value decision, legal interests does not have real significance the violation or threatened, only occasionally result, consequence without value out of the illegal content, so accidental defense action violates the legal norms of conduct, must have the illegal the essence of. The author insisted two yuan act without value theory, the core idea is that judge the cornerstone of illegality is of no value and the result of no value, with a combination of subjective and objective, to achieve the protection of law should be included in the protection of the social ethical order.At the same time, this paper argues that both persist subjectivism position still insist objectivism standpoint, for the fundamental significance of illegality judgment is to guide the judicial practice, to achieve the purpose of criminal law. And then the accidental defence whether it constitutes a crime, what constitutes a crime and how to design the system of specific punishment. The distinction between accidental defense accidental defense and negligence intentionally, behavioral offense and consequential offense, fully consider the behavior of the subjective malignant, the social hazardous size, actor’s age, intelligence and mental state condition. Considering the practical significance of accidental defense, in occasional defensive behavior of crime, regardless of whether the violation or attempted plot, should consider to reduce the social harm degree of the role of sentencing punishment to legitimate. |
