Imaginary Defense Several Issues To Explore

Based on May 28,2011 Xuan imaginary defense homicide as the research object,this article studies from the angle of law theory and case analysis.According to Guangzhou Intermediate People's Court decided that the imaginary defense is typical in the legal theory to the case,but its ruling judged Xuan as intentional homicide.This paper holds that Guangzhou Intermediate People's Court ruling on the case is questionable,and on the basis of using the case analysis and comparative analysis,etc.to analyze the theory.Full text is divided into six chapters,the first chapter briefly introduces the theme and the significance of this paper,the status quo of imaginary defense theory research both in China and abroad.In our country,because of chaos about imaginary defense standards and the lack of legislative system,it makes the legal theory not only to play a role in guiding judicial activities,but also brings many problems to the judicial practice.Many cases in the judicial activities have caused considerable controversy not only in the jurisprudential circle but also in the social.What's more,the foreign definition of imaginary defense is debated,the judicial practice are also different.Because of this,this article for the imaginary defense system combing becomes very necessary.In this paper,the second chapter presents the basic details of a case of Xuan homicide,and through trimming and representing court decisions,condensed the focus of the dispute for the two parts: first,whether can Xuan be considered as imaginary defense,namely the qualitative problem of imaginary defense;Second,whether can Xuan be firmly believed as crime of intentional homicide,namely the fault form of imaginary defense.The third chapter mainly introduces the concept and constitutive requirements of imaginary defense.Though pointing out that the existing disadvantages of the constitutive requirements and amending on the basis of that,creatively put forward six elements theory of the imaginary defense.Based on Xuan homicide this line with the requirements of the corresponding analysis,through introducing other small cases and analyze the focus one of this case,draw this murderous activities should be as the conclusion of imaginary defense.In this paper,the fourth chapter on the basis of six elements theory,differentiating imaginary defense into three kinds,included imaginary defense about the matter,imaginary defense about the time and imaginary defense about person.From the practice of the different types of imaginary defense and defense is not timely,defense definition of the third person and other defense behavior distinction type,scope and boundaries of the imaginary defense is more clear,and this case comes to Xuan's behavior should be treated as imaginary defense about the time.The fifth chapter mainly elaborates the analysis of imaginary defense fault form: Jurisprudential circle tends to take criminal negligence and accidents said as common theory.However,aiming at Xuan's case take intentional crime as the decision,this paper argues that it is necessary to form of imaginary defense again in this analysis.And then this paper analysis to the foregoing the focus two to the case,that imaginary defense can only constitute an accident or criminal negligence,does not constitute intentional crime,the court to Xuan's behavior judgement as an intentional homicide is not reasonable.As the conclusion part,chapter six is the combing of above and summary of the review.It is also the prospects and hope for the further development of this field.