The Study Exmption Mechanism Of Negligent Unjustifiable Self-Defense

The purpose of justifiable defense is to encourage people to fight against illegal acts to protect their own legal interests and social stability when it is too late to turn to the legal force. But all rights have certain boundaries, so does the self-defense right. As a result, the unjustifiable self-defense comes into being. According to the subjective form of the unjustifiable self-defense, unjustifiable self-defense can be divided into intentional unjustifiable self-defense and negligent unjustifiable self-defense. Because the direct intentional unjustifiable self-defense is convicted of intentional crime, the item 2 of article 20 of the criminal law shall only be applied to the indirect intentional unjustifiable self-defense and negligent unjustifiable self-defense. At the same time, because it is inherently difficult to distinguish the indirect intention from the negligence especially the negligence with undue assumption, a large number of unjustifiable self-defenses are dealed with the negligent unjustifiable self-defenses in practice. But after the author’s research, the author finds that negligent unjustifiable self-defense does not have exemption mechanisms in the four-element crime constitution theory, that is to say the negligent unjustifiable self-defense has no chance to be exempted from punishment in the four-element crime constitution theory, which is a serious violation of the principle of penalty exception of negligent crimes. First, the author study the reasons why the negligent unjustifiable self-defense has no chance to be exempted from punishment in the four-element crime constitution theory, then based on the analysis, the author proposes we should introduce into three-level crime constitution theory. Second, the author studied four possible mechanisms to decide which is suitable for making the negligent unjustifiable self-defense be exempted from punishment in the three-level crime constitution theory. The author proposes to introduce the Objective Imputation Theory into the rank of constitutive elements and establish the substantial liability theory in the rank of imputability. Only by measures mentioned above, can we realize the sentence balance for the negligent unjustifiable self-defense.