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The Research Of Excessive Imaginary Defense

Posted on:2017-05-25Degree:MasterType:Thesis
Country:ChinaCandidate:H M ChengFull Text:PDF
GTID:2296330488982826Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
In the judicial practice, there are some imaginary Good Samaritan which cause serious consequences yielded awkward results due to lack of criminal law basis. Courts are now managing such cases as intentional crime. However, the actor is not always has the intention of the crime, so regard these situations as intentional crime cannot fit for the principle of compatibility of crime, and it will easy to cause the objective imputation. In fact, imaginary Good Samaritan with serious consequences is one type of the excessive imaginary defense, so researching excessive imaginary defense is helpful to solve the problem of imaginary Good Samaritan. It should clear up the concept, constitutive requirements, conviction and punishment when research excessive imaginary defense.First, it will interpret the concept of excessive imaginary defense. In the theoretical circle of criminal law there are two views about excessive imaginary defense. The idea says that the concept of imaginary excessive defense is nonsense, because the events can completely use the concept of imaginary defense in the practice. But another view points out that the excessive imaginary defense is a different kind of situation, and this view is the mainstream view. The concept of excessive imaginary defense has an important value not only in the theory but also in the practice. Excessive imaginary defense means that a defender who mistakenly believes that has illegal infringements in the practice defense beyond the limits with serious consequences, and caused a serious harmful result expected defense effect. At the same time, the research needs to figure out the difference between excessive imaginary defense and unjustifiable self-defense and the difference between excessive imaginary defense and imaginative defense.Second, it will interpret the constitutive requirements of excessive imaginary defense. It should contain four important conditions include a hypothetical illegal infringement, a meaning of the defense, an act beyond the limits and a serious harmful consequence. It is important to note that the defender with misunderstandings is just because of the surface characteristics of the event. Under the circumstances of excessive imaginary defense, defender’s misunderstanding will not affect his defense intention which is no harm in the beginning. In order to understand the excessive imaginary defense, it will make full sense of the meaning about the limit and serious results.Third, it will interpret the conviction of excessive imaginary defense. The subjective criminal aspect of excessive imaginary defense includes criminal negligence and intentional crime. And there is a kind of situation is an accident in practice. The excessive imaginary defense can be divided into unconscious defense, criminal negligence defense and intentional crime defense. On this basis, the accusation can be determined by subjective elements, criminal behavior, and the nature of the crime.Finally, it will interpret the punishment of excessive imaginary defense. On this occasion, criminal negligence defense can be given a mitigated punishment or be exempted from punishment while intentional crime defense can’t be. The punishment of excessive imaginary defense can find support from various angles, including basic principle of criminal law, criminal policy of combining punishment with leniency and the value of social benefits first choice.
Keywords/Search Tags:excessive imaginary defense, the constitutive requirements, the conviction, the punishment
PDF Full Text Request
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