On The Wrong Types Of Imaginary Defense And The Determination Of Its Guilt

Imaginary defense is a phenomenon of criminal law derived from the lack of preconditions for justifiable defense.Because it involves the theory of cognitive error in criminal law and the subjective responsibility of the defender,it needs to be studied deeply in criminal law theory and criminal justice practice.In this paper,the focus of mingjingguo intentional homicide case,a controversial case affecting the whole country in March 2017,triggered systematic thinking.From the concept and types of hypothetical defense,the author analyzed the existing hypothetical defense phenomenon theoretically,and then determined the corresponding subjective responsibility of specific types according to the refined theory of hypothetical defense types,and formed a relative suitable for the current social situation clear identification path and handling rules of imaginary defense.According to the attribute and content of the illegal infringement in the concept of justifiable defense,this paper defines the connotation of the "fictitious illegal infringement" in the fictitious defense,combining with the formation mechanism of the phenomenon of fictitious defense,and holds that the illegal infringement mistaken by the defense includes not only the general "non-existent illegal infringement",but also the "legal act" mistaken by the defense " According to the specific object of the defender's cognitive errors,the types of the false defense are divided into four specific types: the fact cognitive errors,the law cognitive errors,the concurrence of the fact and the law cognitive errors,and the superposition of the fact and the law cognitive errors.According to the criminal law theory,the false defense of the false cognition of facts is a kind of abstract mistake of the cognition of facts in a broad sense,that is,the mistake of the cognition of facts across crime and non crime.According to the legal conformity theory,the intentional crime should be prevented.According to the duty of care and the ability of care of the defender,the subjective state of mind should be determined Criminal negligence or accident.In the theory of the relationship between illegality and intention,the eclectic "dichotomy" considers the influence of illegality on criminal responsibility to the greatest extent.It is the proper choice to treat illegality differently in different types of crime,which is also the principle of suiting crime to punishment.The subjective fault type of false defense of legal knowledge should be determined.If the defender does not have a wrong understanding of thefacts of the premise of defense,he only has a wrong understanding of the legal significance of the legal act of the defending person,and considers it to be an illegal infringement.According to the dichotomy of the illegal knowledge,when the wrong legal knowledge has no impact on the social harmfulness of the defending person,the criminal intent will not be prevented.Only when the defender has no knowledge of social harmfulness due to the wrong understanding of the law,will the criminal intention be prevented.At this time,it should be determined whether the subjective state of mind of the defender is criminal negligence or accident according to his duty of care and ability of care.In terms of the two types of criminal offense related to the fact cognition error and the legal cognition error,we need to distinguish them according to the two types of association of the defender's cognition error.When the cognitive error of the defender is the superposition of factual error and legal error,the defender actually successively produces two cognitive errors.The specific subjective fault should be determined according to the cognitive error types that promote the actor to produce defense motivation.If the cognition error of prompting the defender to take the defensive action is the fact cognition error,the criminal intention should be stopped,and then whether the defender has the criminal negligence should be determined according to the duty of care and the ability of care of the defender;if the cognition error of prompting the defender to take the defensive action is the legal cognition error,then it should be determined that the defender is the criminal intention subjectively according to the above-mentioned understanding of illegality Criminal negligence or accident.When the defender not only has a wrong understanding of the defense facts,but also mistakenly recognizes the legal facts mistakenly recognized as illegal infringement,this is the hypothetical defense under the concurrence of double mistakes.The content of the wrong understanding of the facts is the legal facts,and the defense motivation of the defender stems from the wrong understanding of the law,so the determination of the subjective fault should be based on the legal error of the defender,According to the aforementioned dichotomy of understanding of illegality,specific identification is carried out.