On Occasional Defense

Although there are few cases on chance defense in criminal practice, study on it bears significant meaning in criminal jurisprudence. In substance, occasional defense in not a defending behavior, only named defense. It is not a concept of crime but of behavior. It exists not relying on its own value but because this behavior can be used to describe and analyze certain types of behavior. Firstly, this article will identify the concept of occasional defense in terms of its characteristics as well as analyze the four situations where it will probably exist. Then, based on currently debatable questions on the treatment of chance defense in academic community, this article will discuss from three aspects——illegality, defense consciousness and principle of superior interests, and the author will voice her own point of views. First, on the essence of illegality, the author insists the theory of binary valueless results, in the view that chance defense is illegal. Second, on the defense consciousness, the author sticks to the theory of necessary defense consciousness. Without the defense consciousness, chance defense can not constitute justifiable defense. Third, on the principle of superior interests, the author thinks that it can not be applied in chance defense because it is impossible to decide which is more superior in nature between two conflicted legal interests. Last, based on above analysis, the author will express her own views about the convicting and sentencing of occasional defense from three aspects. Above all, if the occasional defense is intentional subjectively, convicted as accomplished crime is necessary. Next, in the four different situations of occasional defense, it should be convicted by the same method as that of ordinary crimes in terms of varied subjective attitudes. Finally, “beneficial illegal results” in occasional defense can not be seen as a favorable condition for sentencing.