On The Necessity Of Defense Intent And The Nature Of Haphazard Defense

Justifiable defense originates from the primitive blood feud and has gradually evolved into modern system of justifiable defense in the criminal law as the generation and generalization the national power of punishment.During the evolution,defense intent gradually came into the system of justifiable defense,became more and more explicit,and finally became the core element of justifiable defense.The essence of justifiable defense should firstly be the natural rights of individual survival and development recognized by the universal society,which reflects the satisfaction of individual instinct of defense and emotional need;and secondly be the social rights of maintain orders of the law and stability of the society,which reflects the supplement of public remedy by the private remedy.In a word,the essence of justifiable defense is a kind of rights,and is a kind of remedial rights,execution of which require the actor’s awareness of the existence of such rights or the fact that the original rights are being infringed.Where the actor does not know the existence of the rights or the fact that the original rights are being infringed,the action taken by the actor should not be defined as the execution of such rights or remedial rights.Justifiable defense is not an exception.Therefore,in order to constitute justifiable defense,the actor must have defense intent.Haphazard defense does not constitute justifiable defense for its lack of defense intent,and the essence of haphazard defense should be intentional crime.The main theories of anti-value acts and anti-value consequences in present China blindly deduce specific conclusion on justifiable defense,defense intent and haphazard defense from established criminal standpoints,without considering the essence of justifiable defense,so that they could not reveal the core position of defense intent in the system of justifiable defense and provide proper resolution to the problem of haphazard defense.Therefore,we should exclude haphazard defense from the controversy of the theories of anti-value acts and anti-value consequences.Except the Introduction and the Conclusion,this Thesis includes three parts.Starting from the history and nature of justifiable defense,Part I(Chapter I)explains that the historical progressfrom the primitive revenge to modern system of justifiable defense is the progress that the defense intent came into the system of justifiable defense and gradually became its core so that the essence of justifiable defense is a kind of rights and is a kind of remedial rights.Therefore,no matter what the controversy is in the criminal theories,any research on justifiable defense should not deviate from the essence of the system of justifiable defense.Part II(Chapter II)sufficiently demonstrates the necessity of defense intent by inspecting the criminal theories,legislations,and judicial practices in main countries belonging to the continental and English law systems and the mainland of China.Integrating the controversy on haphazard defense between the(dualistic)theory of anti-value acts and the theories of anti-value consequences,Part III(Chapter III)insists the necessity of defense intent from the essence of justifiable defense,reveals the nature of haphazard defense,and points out the deficiency of the theories of anti-value acts and anti-value consequences,in order to separate haphazard defense from the controversy of the theories of anti-value acts and anti-value consequences.In a word,this Thesis demonstrates the core position of defense intent in the system of justifiable defense through inspecting the history and nature of the system of justifiable defense,to make haphazard defense without defense intent lack of justifiable foundation,and point out the deficiency of any theory talking about justifiable defense,defense intent,or haphazard defense without inspecting the essence of the system of justifiable defense.