Legislation Idea Of Imaginary Defense In China

The perpetrator subjectively wants to carry out justifiable defense, but he fails due to a wrong recognized and his behavior cause damages to innocent people.Because of the absence of express stipulations in law, the identification and punishment of imaginary defense are blank and it is difficult to guarantee the consistency of standards fully rely on judges’ discretion, so that the legislators have the right and obligation to create new law and the clause that imaginary defense "should be given a lighter or mitigated punishment".Firstly, the legislation of imaginary defense is extremely necessary. The common theory of China believes that this kind of behavior is part of fact cognitional error. The perpetrator, owing to his subjectively non-malicious, may be discretionary given a lighter punishment and generally convicted as negligent crime. But it is difficult to solve the problem and address both the symptoms and root causes by analogy with fact cognitional error and it do not meet the requirements of the principle of legality.Imaginary defense is contingent and in little subjective vicious, which can be distinguished from general fact cognitional error. Giving clear provisions according to the principle of suiting punishment and lighten the punishment of imaginary defense serve the purpose of penalty. Also, not all behaviors that have objective harm imposed severe criminal penalties,as a subjective cognition on proper behavior, given a mitigated or even be exempted from punishment consistent with the modesty principle of criminal law.Secondly, the legislation of imaginary defense is feasible. Although there is no express stipulations in Chinese criminal law, the legislation and jurisprudence abroad are significant reference. In addition, domestic scholars began to definite the concept, cognizance and punishment many years ago, which also guide practice with theory. In recent years, the precedents established a good foundation and provided a strong demonstration effect to the legislation of imaginary defense,indeed there are some shortcomings worth discussing.Third, the reason why imaginary defense deserves criminal punishment is that it causes serious personal harm. According to the standard of intentional injury crime in Chinese criminal law, imaginary defense shall be given criminal punishment only on condition of slight or more serious injury. It is a part of direct intentional crime as it conforms to the subjective constitutional elements. Negligence crime and accident does not cater to the mind of imaginary defensive because the aversion to harmful consequences. However, there exists a subjective self-defense wish in perpetrator’s mind and some random objective factors often impact the behavior of his subjective judgment, so that the sentence should be lighter than general intentional crime.Fourth, the imaginary defense statute design "should reduce the punishment." When the identification and punishment imaginary defense, can learn from Western countries on the "ordinary reasonable person" in the unity of subjective and objective criteria and standards: if ordinary people think hypothetical rational defense of rationality, the imaginary defense should reduce the punishment; on the contrary, not mitigated punishment. When the identification and punishment imaginary defense,should the unity of subjective and objective measure, not biased towards either party,resulting in erroneous conviction, sentencing abnormal deviation. At the same time,reduce the imaginary defense penalties in line with the field of criminal justice in the current trend Penalty Reprieve. Finally, to clarify the difference between the behavior of the imaginary defense approximate and can be clearly imaginary defense concept and Elements, easy and accurate judicial determination.On the basis of our criminal law norms to reduce the representation shall be punished for imaginary defense and foreign law stipulates that law imaginary defense can be placed China’s "Criminal Law" in section 20, the following expression is appropriate: "The perpetrator had mistakenly believed the existence of unlawful infringement, and to take to stop the behavior or cause bodily injury or death, should be given a lighter or mitigated punishment. "...