On The Obstacle Of "Excessive Defense" Caused By "Weak Impulse"

"Excessive defense" refers to the act of defense that obviously exceeds the necessary limit and causes great damage to the ongoing unlawful infringement.Based on the principle of class theory to distinguish lawlessness from liability,"excessive defense" is only an objective evaluation on the level of lawlessness,and its liability remains to be further investigated."Excessive defense" is not necessarily responsible,and there exists the situation of "excessive defense" but obstructing responsibility in theory,legislation and practice.Emotional impulses are divided into "weak impulses"(confusion,fear,or shock)and "strong impulses"(anger,dissatisfaction,or passion to fight)."Over-defense" caused by "weak impulse" can hinder responsibility,and the basis of which should be attributed to the loss of expectation possibility.In order to better understand and apply the "excessive defense" under the "weak impulse",it is necessary to base on the interpretation theory of criminal law.On the basis of being strictly different from "strong impulse","weak impulse" should be judged based on the standard of "state-general person-actor",comprehensive defense causes and other factors,and should pay attention to the power of expert participation.To be specific,apart from the introduction,this paper is divided into the following four parts:Introduction: First,explain the concept of "weak impulse" and "over-defense".The former is confusion,fear or shock and other emotional states;The latter refers to the acts of defense that obviously exceed the necessary limits and cause great damage to the ongoing unlawful infringement.Secondly,based on the thinking of class theory that distinguishes lawlessness from liability,the author puts forward that "excessive defense" should be "dichotomized".And briefly summarizes the research and practice status of this problem in China.Thirdly,it leads to Article 33 of German Criminal Law,which shows that there have been legislative examples of "excessive defense" without responsibility.Finally,the paper makes clear the problems to be solved.That is to reflect on the practice of "excessive responsibility" in our country and reveal the misunderstanding of theoretical and practical cognition;Strengthen the judicial practice to the "weak impulse" caused by the "excessive defense" attention,and detail the relevant judgment methods.The first part: Deny that excess is to blame.First of all,according to the concept of class crime theory,it is necessary to understand the judgment of defense-related crimes based on the distinction between illegal and responsible."Excessive defense" is only illegal,and whether it is responsible or not needs further judgment.Secondly,according to whether the defender is blameable or not,it is further divided into the "overdefense" which is responsible and the "overdefense" which is not responsible,the latter is the situation of "overdefense but not responsible".Specific manifestations are innocence(accident),lack of responsibility(age,mental state)and lack of expectation possibility.The "over-defense" under the "weak impulse" should be attributed to the lack of expectation possibility.Finally,on the basis of examining the relevant legislative examples and legislative proposals,it is further believed that it is of great benefit to understand the judgment of defense-related crimes by distinguishing lawlessness from liability.The second part: Analyze the theoretical basis of the responsibility of "excessive defense" caused by weak impulse.The specific reasons include the double reduction of guilt,the lack of objective punishment conditions,various psychological inferences,the lack of necessity of prevention,the thinking approach of three-way synthesis theory and error theory.In the end,the fundamental reason of the "weak impulse" and the "over-defense" hindrance responsibility is the lack of expectation possibility.The third part: Based on the existing provisions of criminal law in our country,this paper tries to find the legal basis for the "excessive defense" under the "weak impulse" from the standpoint of interpretation,and the relevant cases are attached to illustrate.First,the "obvious" in the limit of behavior(Article 20,Paragraph 2 of Criminal Law)is interpreted in a unified way of subjectivity and objectivity,and the possibility of "obvious" exceeding the necessary limit is denied through the humanization consideration of the "weak impulse" of the defender.Secondly,the third paragraph of Article 20 of the Criminal Law is endowed with new ideas.On the premise of insisting that all defensive acts have the limit requirements,the author puts forward that this paragraph has double nature and status.It may exist either as a precautionary provision of paragraphs 1 and 2,or as a special provision of paragraph 2in exceptional cases.Third,the "proviso" of Article 13 of the Criminal Law is applicable.Only when the defender meets the conditions of subjective malignancy,right legitimacy and necessity of prevention at the same time,can the proviso be applied to the crime of "excessive defense" under "weak impulse".The fourth part: To explore the judgment standard and method of the "over-defense" obstruction responsibility caused by "weak impulse",and to explain the related cases.First,identify the dominance of the "weak impulse".Secondly,the judgment standard of "country-general person-actor" is put forward.Thirdly,the cause of defense,the contrast of offensive and defensive forces,the nature of illegal infringement,the possibility of third party intervention and the reasonable cool-down time should be integrated to make specific judgments.Finally,attention should be paid to the participation of psychologists and other experts in criminal proceedings to assist judicial personnel in accurately judging the "excessive defense" under the "weak impulse".