The Research Of Defense Consciousness

As the subjective justification basis of defense behavior,defense consciousness is controversial on the theoretical level,including its connotation,the specific content of its constituent elements,and whether it is necessary for the establishment of justifiable defense,the lack of defense consciousness has become the most important reason to hinder the establishment of justifiable defense,the recognition rate of defense consciousness has been kept at a very low level all the year round,and has fallen into the judicial predicament that the standard of identification is not proper,the logic of identification is not reasonable,and the nature behavior of mutual affray is easily defined.In order to solve the above-mentioned problems,to provide a scientific identification standard and logical thinking of defense consciousness for judicial practice.This paper makes a comprehensive and systematic study of the defense consciousness.It is divided into four parts:The first part,the constituent elements and connotation of defense consciousness.The defense consciousness refers to the mental state that the defender is aware of the illegal invasion and is determined to stop the illegal invasion in order to protect the public interest,the personal and other rights of himself or others.The specific content of defense cognition should include the cognition of defense cause,defense time and defense object,and the defense will should include the intention to hurt the illegal infringer and the will to protect the legitimate rights and interests of the state,society and individuals.The second part,whether defense consciousness is necessary or not.In this part,the author briefly introduces the theory of action without value and the theory of result without value and its influence on the theory of justifiable defense,and holds that defense consciousness must be based on the theory of dual action without value,it is more reasonable to take into account the social equivalence of behavior and the balance of legal interests.The View of defense cognition is different from the view of defense goal,which supports the view of defense cognition and focuses on defense cognition,and does not require too much defense will.The third part,the realistic predicament of the judicial cognizance of defense consciousness.This part returns to the judicial practice,obtains our country defense consciousness judicial affirmation existence main question through the positive analysis: First,defense consciousness cognizance is too strict,this is reflected in the coexistence of the intention to injure and the sense of defense,which often leads to the conviction of the intention to injure,demanding the defender's understanding of the urgency of unlawful infringement;This is reflected in the tendency of consequentialism,which obviously weakens the influence of subjective factors on the outcome of the judgment,and adopts an ex post perspective thatignores the subjective feelings of the parties to adjudicate the case,which makes it difficult to arrive at a reasonable judgment,as long as there is the appearance of mutual Affray,it denies the existence of defense consciousness on the grounds of mutual affray and lacks theoretical rigor.The fourth part,the defense consciousness judicial cognizance predicament's reply.Aiming at the practical problems mentioned above,this part puts forward the solution: aiming at the problem that the identification of defense consciousness is too harsh,the identification of defense consciousness should be based on the theory of defense cognition and according to the standard of "three essential conditions",in view of the illogicality of defense consciousness,we should try the trial thought of "behavior to result",and analyze the case from the perspective of rational third party In view of the problem of easy identification of mutual fighting,it should be made clear that in the course of fighting,when one party's force suddenly escalates,the party who is faced with the escalation of force and in the case of sudden fighting,the party who later acts may have a sense of defense,the referee should distinguish the essence of conduct through the appearance of mutual blows,and make a qualitative analysis of conduct on the basis of indepth analysis.