The Study Of Reconstructing Subjective Conditions Of Self-defense

In China,there has been theoretical argument for the subjective conditions of self-defense,which affects the determination of self-defense and imperfect self-defense.The results of handling typical cases of self-defense also reveal that there are drawbacks,such as “preferring objective to subjective” and the excessively harsh determination of subjective conditions of self-defense,existing in judicial practice.This seriously compresses the space for constituting self-defense and imperfect self-defense.Considering the judgment of second instance of “Yu Huan Case” of China and the legislation on self-defense of the countries of the continental legal family,it can be known that the subjective psychological state of the defender is affected by the objective context owing to the urgency of unlawful infringement.Counteract or attack,as a result of fear,astonishment,panic,indignation or revenge,is lack of anticipated possibility.Thus,it cannot be denied that the act has the factors of self-defense.The theory of anticipated possibility provides theoretical guidance for the Criminal Law of China to re-examine the subjective conditions of self-defense.In this thesis,the author combines the research findings of some Chinese scholars with the practice of typical cases of China,makes research in the legislation on self-defense of the countries of the continental legal family,analyzes the necessity and feasibility for the theory of anticipated possibility to reconstruct the subjective conditions of self-defense of China,breaks the theoretical barriers for introducing anticipated possibility into the Criminal Law of China,and aims at reconstructing the subjective conditions of self-defense by the theory of anticipated possibility.In addition,the author puts forward suggestions for amending Article 20 of the Criminal Law of China.The opinion of the doctrine of defense cognition should be adopted theoretically.Based on this,the theory of anticipated possibility should be absorbed to judge the subjective conditions of self-defense.The establishment and the sharing of criminal liability for self-defense and imperfect self-defense should be reasonably determined.All of these measures are beneficial to realizing the legislative purposes of the system of self-defense.They are also the effective means to bring the important value contained in the theory of anticipated possibility into full play in current resources of the Criminal Law of China.