Research On The Application Of The Provision Of Reduce Or Exemption Punishment Of Excessive Defense In The Excessive Imaginary Defense

China’s law does not have a clear provision on the excessive imaginary defense,whether in theory or in judicial practice,there are great disputes about the cases of excessive imaginary defense.In the aspect of sentencing of excessive imaginary defense,whether the provision of reduce or exemption punishment of excessive defense suit to excessive imaginary defense is a controversial topic in the theoretical circle.Excessive imaginary defense means that in fact there is no urgent illegal infringement,but the perpetrator mistakenly believes that there exists and fights back beyond the necessary limit,and causing great damage.Excessive imaginary defense is different from imaginary defense and excessive defense.It is a cross case of imaginary defense and excessive defense.There are two factors in the excessive imaginary defense,which are "imaginary defense" and "excessive defense".According to the number of sins in the process of people’s behavior,it can be divided into one sin and two sins excessive imaginary defense.If the perpetrator’s false recognition of the objective facts and the behavior beyond the necessary limit are guilty,it belongs to the two sins excessive imaginary defense.If only the behavior beyond the necessary limit is guilty,it belongs to the one sin excessive imaginary defense.There are positive and negative views on the issue of whether the provision of reduce or exemption punishment of excessive defense suit to excessive imaginary defense.The negative view is unreasonable,because this view is too worried about the balance of sentencing and ignores the defense motivation of the perpetrator.We can learn from the views of Chinese and foreign scholars to find the theoretical basis for the excessive imaginary defense to suit the provision of reduce or exemption punishment of excessive defense.The theory of less illegal illegality,less responsibility and less illegality and responsibility all have their shortcomings.It is more appropriate to use the theory of unify the subjective and objective.China’s criminal law adheres to the principle of unify subjective and objective,and the responsibility of the perpetrator should be within the scope of his subjective knowledge.In the one sin excessive imaginary defense,the perpetrator’s imaginary defense part belongs to an accident,does not recognize that there is no illegal infringement,so does not need to bear criminal responsibility,only needs to be responsible for the excessive defense part.Its scope of responsibility is consistent with that of the excessive defense’ responsibility,so it can be applied to the provision of reduce or exemption punishment of excessive defense.However in the two sins excessive imaginary defense,the perpetrator is negligent in the part of imaginary defense,and he has the possibility to realize that the fact of illegal infringement does not exist.His responsibility is beyond the scope of responsibility for excessive defense,so it can not be applied to the provisions of exemption and punishment for excessive defense.Although the latter situation can not be applied to the provisions of reduce or exemption punishment of excessive defense.But considering the nature of its behavior and China’s criminal policy,it should be given a lighter punishment in sentencing.