Research On Accidental Defense Judicial Determination

There is a "separation of paper" between accidental defense and justifiable defense,with only defense consciousness in the middle.The defense consciousness,as a subjective factor of justification,definitely determines that accidental defense without defense consciousness is inevitably involved in the "battlefield" of subjective and objective illegality between Handlungsunwert and Erfolgsunwert.First of all,this paper combs the theoretical differences,points out the common points,misunderstandings and the focus of disputes between the theory of Handlungsunwert and Erfolgsunwert,and shows the attitude of the paper,affirms the position of objective illegality of Erfolgsunwert.At the same time,the paper also shows the view that the defense consciousness needs to be said and not to be said,and agrees with the view of defense consciousness not to be said.Then,according to the act utilitarianism,we measure the legal interests protected and infringed by the accidental defender.The accidental defender does not infringe the redundant legal interests,and it enjoys the essential advantage of interests.The principle of superior interest is the justification of accidental defense.Therefore,accidental defense is justified.Finally,rule out the divergence of paths,and consider accidental defense as justifiable defense.The accomplished view of Handlungsunwert ignores the another legal interests protected by accidental defenders,and it is one-sided;The impossibility’s attempted view of Handlungsunwert that the judgment of the danger of threatening legal benefits is a great controversy at least in the scope of the mainland law system;The general prevention attempted view of Handlungsunwert are based on the judgment of ordinary people in the society,considering the need for general prevention,and identifying non-illegal behavior as illegal,so as to expand the scope of punishment,the judgment criterion is debatable.The attempted view of Erfolgsunwert is affected by the general prevention of Handlungsunwert,and adopts the method of presumptive probability theory and dangerous valueless theory to determine that accidental defense is an attempt of a crime.It is not a methodology for judging the attempted crime;The dichotomous view of Erfolgsunwert denies the legitimacy of self-help accidental defense,and affirmsthe legitimacy of emergency rescue of other people’s accidental defense.In fact,there is no distinction between "justification" and "not justification";The outer super regulations of non-criminality view refuses to abandon defense consciousness,and accidental defense does not establish justifiable defense.Then it is determined that accidental defense is not a crime based on the nature of illegality.This view undermines the stability of the criminal law;The justifiable defense view is thorough,consistent from beginning to end,reasonable and legal,and can withstand repeated scrutiny.Accidental defense has no defense consciousness,but it protects another at least equal legal interest,so it is in an objective defensive position.And compared with the "no legal benefits" of unlawful infringement,accidental defenders enjoy superior benefits,which are justified after being measured.The accidental defense is essentially a legitimate behavior;The illegality is objective,and the judgment of illegality about the cause of illegality deterrence should not contain subjective factors;The defense consciousness is sufficient and unnecessary for establishing justifiable defense.Therefore,The accidental defense is justifiable defense without defense consciousness.