Research On Issues Related To Defense Consciousness

As everyone knows,justifiable defense is a situation in which crimes prevent the cause,and it is a hot issue in the current criminal law.The cases ranging from Yu Huan to Yu Haiming have aroused people’s in-depth thinking.There is no doubt that justifiable defense grants citizens the right to self-relief in emergency situations.When facing urgent illegal infringements,citizens can perform legitimate defense actions and commit crimes under the circumstances of legitimate defense.Should defense awareness include the will to defense? In theory,there is a need to say that there is a will to defense,and the will to defense is not to be said.The two theories will have completely different results in the handling of related cases.Both the general theory and practice of my country’s criminal law agree with the theory of necessity,but the lack of regulations on whether defense awareness must have a will to defense is absent in the legislative and judicial interpretations,which makes it not to be popular.In real life,there is often a phenomenon that lacks the will to defend but uses the illusion of legitimate defense to commit crimes to evade legal responsibility.Such as pretext defense,mutual assault behavior,defensive provocation,and accidental defense.Judging from the appearance of these behaviors,there is an illusion of legitimate defense,but if you insist on the will to defend,it must be said that these behaviors should be treated as crimes.As we all know,it is inevitable that there will be coexistence of defensive awareness and subjective intention in the process of legitimate defense,but there is also a lack of legislative and judicial interpretations.It is necessary to clarify the circumstances under which legitimate defense is established and deliberate crime is established! In German and Japanese criminal law theories,scholars who believe that justifiable defense does not require a will to defend as long as there is an awareness of defense are increasing,but their theory and judicial practice still insist that the will of defense is necessary.my country’s traditional criminal law theory strictly adheres to the theory that the will to defend is necessary.The will to defend is the subjective element of legitimate defense and the core element of defense consciousness.Reviewing our country ’s judicial trials on legitimate defense cases also insists that defense awareness includes defense awareness and defense will.Adhering to the will to defend is necessary to fight crimes and safeguard the people’s legal interests,and is of great significance for solving the problems related to legitimate defense.It is also an important factor in distinguishing the perpetrator’s crime and non-criminal in legitimate defense.At the same time,there is another issue worth noting — how to solve the coexistence of defensive consciousness and subjective intention is also worth studying.The sense of defense is mixed with subjective deliberate and realistic possibilities.Both the criminal law theory and judicial trial of justifiable defense can show that the two can coexist rather than exclude each other.This article is divided into three parts:The first part introduces three related cases and summarizes the controversial points.I have selected three cases on the Chinese Judgment Documents website,namely the defense case of Chen Rangheng and his son,the case of Yang Tingli’s mutual assault,and the case of Wang Qiangao’s legitimate defense.The main controversy lies in whether the excuse defense is legitimate defense;Is Yang Tingli’s fight against each other a legitimate defense?;Can defensive will and subjective intention coexist.The second part is legal analysis.First,it expounds the theories of German,Japanese and Chinese scholars on defense consciousness.Second,analyze three cases and come to the conclusion that defense awareness must have the will to defense.It also explains the disadvantages of lack of will to defend,the advantages of insisting on will to defend,and the coexistence of awareness of defense and subjective deliberateness.The third part is the conclusion and enlightenment.The conclusions are drawn through the analysis of three cases: pretext defense,defensive provocation,accidental defense,and mutual assault are not legitimate defense but deliberate crimes.Defensive awareness can coexist with subjective intention,but we must grasp how to characterize behavior in different situations.The enlightenment of this article is that both theoretical and practical circles should insist on the necessity of defense will,and strictly grasp the coexistence of defense awareness and subjective intention.I suggest that you can follow the provisions of the Japanese Criminal Law and add corresponding provisions on defense awareness in judicial interpretations.It is conducive to judicial trials to have a unified standard for determining defense consciousness as a subjectively justified cause of justifiable defense.