On Accidental Defence

Accidental defence is a very controversial problem in the theory of criminal law,which involves the debate of defence intention.Behind the debate is the opposition of various viewpoints in the field of criminal law.Although accidental defence is special and rare,it still needs strict theory to prove the nature of accidental defence,that is,to solve the problem of whether accidental defence belongs to justifiable defence,whether it constitutes a crime,or whether it is attempted or completed,so as to establish a correct standpoint that can guide practice.The starting point of legal research is the definition.It is necessary to summarize and sort out various concepts of accidental defence in order to build a standardized context.It is necessary to systematize and introduce the theories of accidental defence at home and abroad in order to clarify the focus of controversy.It is necessary to carry out the research with historical and developmental perspective,and further evaluate the contents and rationality.Especially at present,Chinese scholars mostly focus on the German and Japanese criminal law theories,and pay less attention to the criminal law of the common law system.However,it is necessary to attach importance to the aware of defence in the British and American criminal law,and provide more accurate solutions for China to deal with accidental defence correctly.Combining the situation of our country,it is necessary to use the method of combining theory with practice to analyze the existing cases,then considering the rationality and feasibility of various theories in judicial practice.In the end of this thesis,it reviews the traditional criminal constitution system of our country,and attempts to find a proper way to deal with the accidental defence in the system,so as to realize the modernization of the trial ability and system in our country.In particular,this thesis proceeds in five parts:Part ? illustrates the background,significance,and methodology of the research.Besides,it also shows a brief review of the literature.Part ? outlines the definition and basic elements of accidental defence.By combing the existing definitions of accidental defence,it is found that disagreements focus on the degree of harm and the subjective state of the actor.Based on the analysis and demonstration,this thesis concludes that accidental defence has the same degree of harm as the crime,but not including other illegal acts and extensive illegal infringement;the subjective fault of the actor can include two forms:intentional or negligent,but not accident.After straightening out the levels,the definition of accidental defence situation discussed in this thesis is given.Then the definition is further disassembled and refined to describe the characteristics of all aspects of accidental defence,for the sake of distinguishing with the approximate concepts and excluding irrelevant cases.Part ? elaborates the disputes and comments on theories of accidental defence.First of all,it classifies all kinds of opinions and combs the propositions in our country.it analyzes whether accidental defence belongs to justifiable defence,whether it constitutes a crime,and whether the presupposed standpoint is reasonable.It preliminarily draws a conclusion and questions the presupposed standpoint.Secondly,from the German and Japanese criminal law to find the source of Handlungsunwert and Erfolgsunwert.Through combing the scholars' views on the necessity of defence intention and the treatment of accidental defence,this thesis agrees with the view of the necessity of defence intention should reference written law,and criticizes the view of advocating accidental defence is an attempted crime in the three level system.Finally,it concerns the discussions of unknowing justification by the scholars of British and American criminal law.After weighing advantages and disadvantages of three theories,it is concluded that the mixed theory of justification is more reasonable.Part ? mainly explores the reasons why the justifiable acts are justified.The purpose of justifiable defence is to protect the legitimate interests and maintain social order,while accidental defence does not have such intention,which is not consistent with the concept of justifiable defence.In essence,social harmfulness is the standard to judge whether a justifiable act is justified.For a justifiable act that is not explicitly stipulated in criminal law,it should be limited to the types generally recognized in criminal law theory and judicial practice.By analyzing the types of existing justifiable acts and comparing them with the characteristics of accidental defence,it is found that justifiable acts have at least excusable reasons,while accidental defence does not belong to any of them,there is no justifiable reason,only a simple fault,and it is concluded that accidental defence does not have justifiability.Part?mainly provides the feasible plan for the conviction and sentencing of accidental defence.First,this thesis chooses the traditional four elements criminal law system and the standpoint of unification of subjective and objective;then the method of legal dogmatics has been used to explain the articles and precedents.Starting with the specific cases and following the thinking process from objective to subjective,this thesis tries to analyze the accidental defence by the object of crime,the objective aspects of crime,the subjective aspects of crime and the subject of crime in turn,so as to draw the conclusion that the crime of accidental defence has been completed.At last,it gives the suggestion that different accidental defences should be classified to different degrees of sentencing.