Reconstruction Of Defense Awareness Based On Justification

Justifiable self-defense,as the reason for illegal obstruction,its establishment requirements include four objective elements and one subjective element,this subjective element is "defense consciousness".Regarding the connotation of defense consciousness,in the previous viewpoints,the two elements of defense awareness and defense will dominate.This point of view holds that the defender’s understanding of the objective defense situation and the will to protect the legal interests of the infringed are established.Elements that are subjectively necessary for self-defense.However,judging from the debates in the criminal law circles of Germany and Japan,which are similar to our country’s criminal law system,there are not a few scholars who advocate not to talk about the defense consciousness and the defense cognition theory that excludes the will to defense.Investigating the fundamental reason,these scholars all believe that the reasons for illegal obstructing and the judgment of illegality are corresponding.From the viewpoint of the substantive illegality theory of infringement of legal interests,defense consciousness cannot objectively show the illegal obstructing of defense behaviors.Not necessary for defense.However,under the viewpoint of dual behavior axiology,the resistance to legal rights violations is as important as the resistance to norm violations,so a sense of defense is necessary.Based on this debate,the research on the connotation of defense consciousness is theoretically necessary to explore the theory of substantive illegality.The discussion on defense consciousness based on the study of the theory of illegality is a systematic study of the subjective elements of the establishment of justifiable defense from the perspective of the theory of the composition of class crimes.Such research methods and ideas can make the connotation of defense consciousness take into account the systematization of criminal law,and can better reflect the research path from general to special.The first part analyzes the necessity of defense consciousness and the do not say of defense consciousness,analyzes the theoretical disputes between the two theories,and summarizes the defects of the two-element theory and the do not say of defense consciousness.At the same time,it analyzes the problems and defects of the defense consciousness at the current stage in both practice and theory.In judicial practice,there are certain difficulties in the application of defense consciousness at this stage.First,the process of identifying defense consciousness is a mere formality,and the identification of defense consciousness is not sufficient,and one-sided affirmation or denial of defense consciousness is only based on the establishment of some objective conditions.Second,the requirement for self-defense awareness is too high,which makes it difficult to identify the perpetrator with justifiable self-defense in real cases.Most of the behaviors that turned from a spat into one party’s first move and the other party’s counterattack were identified as fighting or intentional injury,and were rarely identified as self-defense.Third,the existence of the will to defend will lead to the fact that once the defender has the intention to harm,he will cut off the possibility of the establishment of justifiable defense,which will actually narrow the scope of the determination of justifiable defense.In theory,the theory of defense cognition and the two-element theory also make the boundaries of the connotation of defense consciousness more and more blurred.The reason is that there is no conclusion that can be generally applied to the debate on substantive illegality.It also makes it possible to re-understand the theory of substantive illegality and then rebuild the sense of defense.Faced with these problems in practice and theory,starting from the defense consciousness itself,based on the theory of substantive illegality,and exploring the true connotation of the defense consciousness under the basic point of view that the judgment of illegality and the obstruction of illegality correspond,it is completely possible to solve these problems.If there is a problem,it is more able to draw a reasonable boundary for identifying justifiable defense.The second part,starting from the study of the theory of substantive violation of law,conducts an in-depth discussion on the theory of infringement of legal interests and the theory of norm violation.In principle,it affirms the absolute dominance of the theory of infringement of legal interests in terms of substantive illegality,and on this basis recognizes the meaning of normative violation with the content of illegality.Recognition is the subjective illegal element of the content.That is to say,the content of the illegal elements is the intention of various objective elements and constitutive elements.In addition,from the systematic angle of illegality theory,analyze the substantive connotation of illegal obstruction and its internal connection with the justification basis,so as to reveal that the essence of the justification basis lies in the denial of the substantive illegality.The third part analyzes and researches the main theories of justification based on the systematic study of the substantial illegality.By affirming the theory of infringement of legal interests,the recognition of the principle of the superiority of legal interests in the basis of legalization is also based on the recognition of illegality,and there are also subjective factors such as legal recognition in the basis of recognition.Therefore,through the development of the revision of the substantive illegality theory in the justification basis,it can be concluded that the meaning of the justification basis lies in the superiority of legal interests and the social equivalence with cognitive elements as the content.The fourth part,rebuilds the defense consciousness system.On the premise of the dualism based on the valuelessness of the revised results,the discussion on substantive illegality actually focuses on how to balance the two substantive violations of legal interests and normative violations.Different from the point of view of not acknowledging and fully acknowledging the subjective illegal elements,at the level of subjective illegality,what has a substantial impact on the illegality should only be the intention of constituting the elements.Since the justification basis is actually the opposite of the substantive illegal basis,the subjective element of justifiable defense corresponds to the intentional element of the subjective illegality,and the connotation of the intentional is the knowledge of illegality,that is,the fact of the objective element.know.On this basis,the connotation of defense consciousness,which is limited to the content of defense knowledge,is more systematic.On the other hand,the possibility of defense awareness is an element that distinguishes negligent legitimate defense from negligent accidental defense.In the case of excessive defense and special defense,it is necessary to independently possess the will to defense element in addition to the defense consciousness.At the same time,from the perspective of re-constructing defense awareness,it is not possible to generalize whether defense provocation and mutual assault constitute related crimes.It needs to combine the two aspects of substantial legal interests and compliance with norms.objective defense status and corresponding understanding.