On Accidental Defense

As a special situation under the justification defense theory system,accidental defense has a great chance and the probability of occurrence in judicial practice is extremely small,but criminal law scholars have different or even opposing views on the qualitative and treatment of accidental defense.The reason is that the identification of accidental defense can reflect the basic position of criminal law scholars and thinking from different perspective.Is accidental defense justifiable? Whether or not to constitute a crime? If constitutes a crime,the crime form is accomplished or not.Regarding these issues,scholars of criminal law at home and abroad proceed from different standpoints of Handlungsunwert and Erfolgsunwert,and put forward claims such as accomplished theory,attempted theory,specific theory and innocent theory.Therefore,the identification of accidental defense is a problem that needs to be solved urgently in theory.Based on the research and drawing on the different theories of accidental defense by Chinese and foreign scholars,this article via analysis and comparison methods tries to focus on the issues of accidental defense.The qualitative and processing of defense are discussed,and combined with the theory of criminal law in China.It is believed that accidental defense does not establish justifiable defense,which should constitute an attempted crime.Besides the preface and epilogue,the article is divided into four parts:The first part: overview of accidental defense.This part mainly analyzes the basic problems such as the concept,type,and characteristics of accidental defense,redefines its connotation and extension,and lays a theoretical foundation for the following discussion.The second part: the theoretical disputes and comments on accidental defense.This part uses comparison,analysis and other methods to comb the theoretical doctrines of accidental defense in German,Japanese,British,American,and Chinese criminal law theories,and evaluates them on the basis of analysis and inspection of various theories,pointing out the existence of various doctrines shortcomings,briefly clarify the differences based on the position of Handlungsunwert and Erfolgsunwert,such as the defense awareness in justifiable defense,thus providing theoretical support for the reasonable qualitative analysis of accidental defense.The third part: opinion on accidental defense.Through combing various theories in the foregoing,on the basis of affirming that the essence of crime is the infringement of legal interests,it is considered that the subjective crime is the core role of the crime's constituent elements,and it is clear that defense awareness is a necessary condition for the establishment of justifiable defense.A distinction is made in the act of justifiable defense,and a qualitative conclusion of accidental defense is put forward,that is,accidental defense is not justifiable defense,and it should constitute a crime.The fourth part: opinion about criminal responsibility of accidental defense.This part discusses the form of the crime on the premise of confirming the establishment of a crime by accidental defense.It briefly describes the criteria for determining the accomplished and attempted crime.On the basis of denying that the accidental defense constitutes a accomplished crime,this article negates the fact that accidental defense has resulted in the infringement of legal interests,and then demonstrates that the accidental defense has failed to establish an accomplished crime in the objective and post-judgement position.At the same time,its behavior objectively produces the results of legal interest protection,which can be considered as a tolerant sentence in the sentencing stage.