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Analysis Of Judicial Identification Of Defense Consciousness

Posted on:2020-05-10Degree:MasterType:Thesis
Country:ChinaCandidate:Q W WangFull Text:PDF
GTID:2416330575970407Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
The self-defense clause does not play its due role and is in an awkward position.From an empirical perspective,the reason why this phenomenon exists is that judges take subjective requirements as the main basis for judging the legitimacy of the act.However,the identification of the specific content of the defense consciousness has not yet formed a unified standard,especially reflected in the confusion between defense consciousness and criminal intention,which led to the dilemma of judicial identification.In practice,we often limit the application of self-defense clause,assuming that injury intention can exclude the defense consciousness,and thus to deny the possibility of establishing self-defense.But they take a different way when it comes to identifying excessive defensive behavior(behavior over-defense).A large number of cases in which the perpetrator caused serious injury or death was identified as intentional assault.Since excessive defense has the same subjective formal requirements as self-defense,the judiciary obviously affirmed the coexistence of the injury intention and the defense consciousness in excessive defense.The crux of this contradiction lies in how to explain the specific content of defense consciousness.Different from the practical viewpoint that self-defense generally needs to have subjective requirements,there is a controversy in the theoretical discussion as to whether defense consciousness is necessary to establish a justifiable defense.The affirmative point of view that it is necessary should be adopted,because it has the basis of statutory law,and corresponds with the logical structure that criminal intention is a subjective element of crimes.There are different interpretations of the necessary point of view,including defense awareness theory,defensive volition theory and eclecticism.In the discussion of Chinese criminal law,the eclecticism can strengthen the basis of defense awareness and recognize the content of mixed subjective will,it can not only gently improve the current status of self-defense rules,which is different from public's cognition,but also can reasonably explain how criminal intentions and defense consciousness can coexist.The discussion of the specific content of defense consciousness needs to be carried out with the help of intentional theory.The difference is that when one holds defensive consciousness while acting,he or she is in knowledge and meanwhile evaluating the others behavior.Defense awareness can be decomposed into the cognition of the illegal violation and the defense behavior,recognizing the urgency of illegal violation is the defender's understanding of others' behavior,that's the basis of defense awareness;recognizing the justifiability of defense behavior is the defender's understanding of his/her own behavior,it's also the link to defense volition.According to the two aspects of defense awareness,the defender's active pursuit of defense result is also reflected in the hope or indulgence of the violation result,presenting a mixed subjective form of will.This kind of interpretation caters to the trend of objectification of intentional elements in intention.Therefore,while fact finding is concerned,it can be concluded that the defense consciousness and the criminal intention are not mutually exclusive,the view in judicial practice that the injury intention exclude defense consciousness should be corrected.From value judgment level,enriching the connotation of defense consciousness can not only make the self-defense clause work properly,but also can reasonable solve the problem of identifying the form of excessive defense.Besides,it helps excessive defense avoid being repeatedly evaluated,and achieve the effect of sentencing balance.The article starts from the contradiction of the judicial practice phenomenon,and eventually returns to specific application.On the one hand,it affirms the inclusive relationship between defense consciousness and criminal intention,and creates a new concept of mutual beatings.On the other hand,it learns from the equivalent judgment principle,and combines objective and practical analysis of the subjective intention of the agent.
Keywords/Search Tags:Defense Awareness, Defense Volition, Criminal Intent, Excessive Defense, Equivalent Judgment
PDF Full Text Request
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