On The Determination Of The Subjective Sins Of The Defender In The Excessive Defense

Negligence can be the defenders' sins in the excessive defense,it has been recognized by the academic community.However,throughout our country's judicial practice in the case of excessive defense,almost all are intentional crimes.In excessive defense,whether the negligent of defender sins in the excessive defense continues to exist has been questioned by some scholars.This paper holds that the subjective sins of the defender in the excessive defense should include negligent and intent.In the academic circle,the research on the subjective sins of the defender in the excessive defense only discusses whether it is valid or not,but does not deeply analyze the identification and specific behavior.Through case retrieval and academic investigation,in theory and practice,there are deviations in understanding of the subjective sins of the defender in the excessive defense.In order to correct it,this paper tries to provide a theoretical construction and an applicable way for the subjective sins of the defender in the excessive defense.This paper analyzes and demonstrates the subjective sins of the defender in the excessive defense from three parts.The first chapter,analyze the identification dilemma of the subjective sins of the defender in the excessive defense,mainly for the judicial dilemma and improper academic questioned in the negligent excessive defense.In judicial practice,there are some problems,such as the tendency of intentional excessive defense,the ambiguity of the identification of excessive defensive limit condition,and the circumstances of the penalty for excessive defense are not fully applicable.Investigate its reason,lies in the judicial organs understanding of defense intention to confuse the cognizance of crime intentionally,insufficient identification of excessive defense limit condition,and the relationship between the provisions of punishment exemption and negligence in the excessive defense is mishandled.Some scholars put forward that there is a legislative negation and application dilemma of negligence defense.Specifically,the defense limit rules out the form of fault of negligence,and the provisions of punishment exemption and exemption are not compatible with the form of negligence in the application.Moreover,the special defense makes negligent excessive defense irrelevant.The second chapter,in view of the problems put forward in the first chapter,this chapter clarifies and corrects the misconceptions of the subjective sins of the defender in the excessive defense.Firstly,based on the legislative provisions of excessive defense and the practical identification of the form of negligent excessive defense,the negative views are evaluated and analyzed.Demonstrate the negligent sin of the defender in the excessive defense has its theory,legislation,judicial basis.Secondly,in view of "defensive behavior is intentional,excessive defense may not be intentional" to explain,correction of intentional thinking path.The third chapter aims in order to solve the above problems,from three aspects to regulate the defense of the subjective crime of the determination of the defense.Firstly,in order to better accept the coexistence of intent and negligent in excessive defense,this chapter introduces the intentionality of defensive behavior in defense intention,and realizes that defensive behavior is an act that coexists with the meaning of defense and attack.It is the natural attribute of defensive behavior to discuss the coexistence of defensive meaning and attack meaning.And it is completely clarifying the intent sin in excessive defense identification of the misunderstanding.Reconstruct defense intent by theoretical analysis of the theory of binary behavior has no value.The defense intention only requires the existence of defense cognition,but the defense will is not necessary.It is to correct the view that the direct intentional sin of excessive defense is excluded exists in the academic circle.These prove the viewpoint of this paper: the diversity of the subjective sins of the defenders in the defense,the sin forms of excessive defense include negligence,overconfidence,direct intention and indirect intention.Secondly,analyze negligent defense excessive behavior specifically.To normative the judicial identification criteria for negligent excessive defense,by defining the behavior pattern of negligent excessive defense in practice and adhering to the recognition of error handling rules.There is an epistemological error in excessive defense.In case of cognitive errors in defense limits,we should adhere to the rules for dealing with cognitive errors.It should be considered that the intention form has been excluded;generally the sin form is negligence,the form of overconfidence is included also.When the perpetrator does not have the possibility of foreseeing the result and the possibility of avoiding the result,it should be identified as an accident,and it shall not be held criminally liable for an accident.Finally,due to the intent and negligent of excessive defense have obvious the difference between the identified elements and applicable conditions,in judicial practice,we must strictly distinguish between intent and negligent excessive defense.This paper holds that,the form of negligence in excessive defense,the perpetrator has a clear understanding of defense cause,defense time and defense object,and have a clear understanding of the intensity of his defensive action and the consequence that he is to cause,but the perpetrator is negligent in his knowledge of these.He misjudged the intensity of the unlawful infringement in the cause of defense,or misjudged the physical capability of the object of defense,or misjudged the intensity of his own defensive behavior.These mistakes were caused by the perpetuator's subjective carelessness and inattention.The result is that the defense behavior has reached the "obvious beyond the necessary limit" and ultimately resulted in "significant damage".The excessive result is objectively attributable to the perpetrator,which belongs to the defensive excessive behavior under the negligence and overconfident negligence.In the judicial practice,the negligent excessive defense has the concrete behavior performance.Mainly includes: before the implementation of the defensive behavior,the unlawful infringer to take persuasion,concessions,in order to avoid the occurrence of physical conflict.Implementation of defense behavior in the process,adopt escape and retreat defense way.The defense tools held are the same or equal to the attack means of the unlawful infringer;the act of defense is to stop the unlawful infringement,but due to the miss of the act or the unlawful infringer's behavior beyond the expectation,causing serious injury or death of the unlawful infringer.After the end of the defense,give aid to the unlawful infringer.In addition,the cognitive error of defense limit belongs to the factual cognitive error.It should be considered that the intention form has been excluded;generally the sin form is negligence,the form of overconfidence is included also.When the perpetrator does not have the possibility of foreseeing the result and the possibility of avoiding the result,it should be identified as an accident,and it shall not be held criminally liable for an accident.