On The Form Of Sin Of Excessive Defense

Defence as a special kind of criminal behavior,if to identify the actor constitutes a crime,need the actor in the subjective crime,however,our criminal law does not directly stipulate its crime form,this leads to defense crime form to become one of the big differences in the system of justifiable defense,thus the academic circle formed many disputes in theory.From the perspective of judicial practice,the judicial solution of our judicial organs to this problem is also in a complex and chaotic state.Based on this,in order to correct the understanding deviation of theory and practice of defense crime form and realize the correct identification of defense crime form,this paper will argue from four aspects:The first chapter is an overview of the form of defensive sin.As a special criminal act,to determine that the defender establishes a crime,the actor should act at the objective and subjective level.At the objective level,the defense needs to meet the defense behavior and the defense result,and also needs to follow the judgment path from the defense behavior to the defense result in the defense order.Among them,the judgment of excessive defense behavior should adopt the view of "objective necessity",and the judgment of excessive defense result should test whether the excessive defense behavior caused the result of serious injury to the illegal infringer.At the subjective level,the defense is necessary to have the corresponding crime subjectively,that is,the serious injury caused by the excessive defense behavior has the subjective corresponding intentional or criminal negligence.The second chapter is the judicial position of the defense of crime.From a macro perspective,judicial organs identify most defendants in defended cases as intentional crimes and mainly as two identification modes.From the micro perspective,there are three misunderstandings in the form of defense crime,namely: only using tools;evaluate the subjective state of defense in stages;and confuse defense consciousness with the crime.The third chapter is the theoretical litigation of the formal identification of excessive defense crime.Through the combing of scholars' views on the form of excessive defense sin,we can find that scholars' views almost exhausted all possibilities.However,among these viewpoints,the view that the form of excessive defense is criminal negligence has been widely accepted by scholars,and whether the crime of excessive defense can be regarded as criminal intent,scholars have a big disagreement.Moreover,in combination with the judicial status quo of the formal determination of excessive defense crime,there is also a huge difference between the theoretical theory and the judicial practice,that is,most judicial organs regard it as criminal intent,while most scholars regard it as criminal negligence in theory.The fourth chapter is the identification standard of the form of excessive defense crime.Three basic ideas should be set up in the correct determination of the form of the crime of excessive defense: one is to restrain the implicit interference of the "factors outside the case";The second is to abandon the mechanical application to the "system of crime theory";The third is to change the judicial concept of "national standard".Only in this way can the judicial organs normalize and identify the form of the crime of excessive defense.When concretely identifying the form of excessive defense,combining with the judgment basis of the form of excessive defense,namely "outcome standard theory",it can be seen that the key to determining whether the defender has criminal intent subjectively in the process of excessive defense lies in whether the defender knows the result of excessive defense.Because the establishment of excessive defense needs the premise of defense consciousness,it is difficult for the defender to realize that his behavior will produce excessive defense result under the condition of defense consciousness.Therefore,the form of excessive defense should usually be criminal negligence,and mainly negligence.There are mainly three types of negligent defense in judicial practice,specifically: the negligent defense of spirit oppression,the negligent defense of defense instrument and the negligent defense of defense limit.