Rethinking Of The Subjective Aspects Of Imaginary Defense

Imaginary defense refers to the circumstancethat,there is no illegal violation,but the actor assumes that is exist,and based on the defensive intent to defend.Traditional criminal law theory about thesubjective aspects of imaginary defensethinksthatit is a fact mistake and preventing the intention because of the offender mistakenly assumed existence of illegal violation.So the imaginary defense can only constitute negligence crime or accident.But the traditional criminal law theory is insufficient,because in real life,there will be such a phenomenon: in fact does not exist illegal violation,and the actor mistakenly assumed to exist,and based on defensive intent to defend,but even it is an objective reality,the actor's defensive behavior is also significantly more than the necessary limitsand causing a significant damage.To Germany and Japan,it called“false to excess defense”,some scholars in our country criminal law called“excess imaginary defense”.Although from the non-justiceof the imaginary defense,theexcessive does not exist.That is to say,the concept of “excessive imaginary defense” is illogical,but this concept can effectively compensate the deficiencyof traditional theory ofcriminal law,to promote theaccurate conviction and sentencing in criminal justice practice,and implement the principle of legality and the principle of responsibility for criminal suit.Therefore,there is no better alternative to replace,the concept of the “excess imaginary defense”should be kindly treatedandto conduct in-depth study on the situation of excess imaginary defense,develop and perfect the theoretical system of justifiable defense.ThisThesis focuses on this goal,described the domestic and foreign research status about excessive imaginary defense,combedthe concepts of justifiable defense,imaginary defense and excessive defense and other related theories,to discuss the excess imaginary defense's concept,characteristics,recognition,especially its subjective aspects and criminal responsibility.Except the introduction and conclusion,this Thesis is divided into four chapters:Chapter?focuses on the rethinking of the subjective aspects of imaginary defense.Mainly through introducingthe traditional theory ofthe subjective aspects of imaginary defense and pointing out the shortcomings thereof,the Thesis put forward the concept of excessive imaginary defense to deal with the shortcomings.Chapter?is talking aboutan excessive imaginary defense and defects.Mainly through the current criminal law scholarshaveproposed the concepts ofexcessiveimaginary defense to summarize and conclude theexcessiveimaginary defense'sconcepts and characteristics,thenthrough the distinguish with imaginary defense,excessive defenseto make clear the natureof excessiveimaginary defense,neither the excessive imaginary defense is inclusiveby imaginary defense,nor the same as excessive defense,even the combination and concurrence of imaginary defense and excessive defense.Chapter ? discusses the constitutionof the excessive imaginary defense.It isdivided into two parts: the first part is the conditions of general excessive imaginary defense,mainly include the judgment of the illegal violation,defense intent,and definition of excess limit.The key ofexcessive imaginary defense difference from general criminal behavior is actor's defense intention.The judgment about the existence of illegal violationbased on objective viewpoint,the mistakenly assumptionof the illegal violation can be avoided should with standard of a third party's judgment.In addition,the innocent people can be justifiable defense for behaviorofexcessive imaginary defense.For the limitation of imaginary defense,we can refer to the limit of justifiable defense.But it should be strictly than excessive defense.The second part is to explore unlimited defense and the ability of non-criminal responsibility for the special circumstances under the excessive imaginary defense.Chapter?discusses the criminal responsibility of excessive imaginary defense.Whatever we discuss on the excessive imaginary defense,such as the concept,constitutionand subjective aspects,the final destination of our discussion should lie in theconvictionand punishment of the excessive imaginary defense.Through discussing the subjective aspects of excessive imaginary defense and combining the nature of excessive imaginary defense.It is clear that the provisions aboutexcessive defense cannot be directly applied to excessive imaginary defense,but can take a lighter penalty at judicial discretion.