On Provoking Defense

Provocation defense is not clearly stipulated in Chinese law,nor is there a clear principle of conviction and sentencing.Especially in theoretical research,it is mostly simplistic,making many definitions vague,and it often faces more controversies in actual criminal justice practice.Moreover,at present,my country does not have a unified standard for the legality of the exercise of the right of defense.It is not difficult to find through the relevant entries on the Chinese Judgment Documents website to search for judgments.In most cases,the conviction is only based on whether the provocator has a subjective intention.Don’t do in-depth exploration.In judicial practice,there is no distinction between different content and situations based on different provocative behaviors of provocateurs.Therefore,the author believes that the various situations of instigating defense should be divided in more detail,and different penalties should be imposed on the instigator for different situations of instigating defense.In contrast,the right of defense began to sprout from the "Twelve Bronze Tables Act" outside the territory,to the emergence of the "dualism" combining the principles of personal preservation and legal confirmation in Germany,and whether the exercise of the right of defense is legitimate has also been raised.After more detailed discussion and division,Japanese criminal law theory is based on absorbing German theories,and its mainstream scholars even admire the "principle of superior interest protection." However,our country’s theory and research on the important issues involved in provoking defense and provoking defense,the legitimacy of the exercise of defense rights and defense intentions are not comprehensive and diversified.Therefore,this article intends to discuss and explore around provoking defense and related issues and content.The full text is divided into five parts.The first part describes the research background and significance of provocative defense and the main research content and methods of this article;the second part introduces the theoretical background of provocative defense,which is mainly derived from the analysis of the early research on defense rights between Germany and Japan.The "legitimate basis theory" and "dualism" explore their connotations together,triggering the legitimacy of the use of defense rights,and in turn triggering more detailed provocative defense theories.Conduct a horizontal comparative study on the theory of provocative defense in Germany,Japan,and my country,analyze their advantages and learn from ideas.At the same time,the theoretical explanation of provocative defense and the analysis of the "situality" issues involved in provocative defense are carried out;the third part mainly analyzes the subjective and defensive intentions of the provocateur in provocative defense,which is also to judge whether the perpetrator constitutes provocative defense.Important factors: The fourth part explores the types of provocative defense,analyzes the applicability of indispensable provocative defense,and conducts in-depth and detailed classification and exploration of illegal provocative defense.However,the indispensable provocative defense intentionally "legitimates" provocative defense,so the author does not support this view.At the same time,the types are further refined into mutual provocative and self-inflicted provocative defenses.Among them,in self-inflicted provocative defense,whether the perpetrator is subjectively predictable is analyzed;the fifth part proposes the methods that can deter provocative defensive behaviors.Legal channels,standardize the legal framework for instigating defense,and clarify the legislative ideas for instigating defense.He also pointed out that in combating criminal and criminal cases,it is necessary to clearly define provocative defense,actively cooperate with the current my country’s anti-criminal campaign,and put forward more judicially operable and rationalized suggestions for perfecting and perfecting the theory and practice of my country’s defense rights.