The issue of imaginary defense has always been a controversial issue in criminal law theory and practice,and there is a problem of unclear reasoning and argumentation in traditional Chinese theories regarding the determi-nation of imaginary defense.By examining the main theories,it is determined that the theory of responsibility for the conversion of legal effects is perfect.Based on the premise of the existence of an improved four-element theory and a three-level theory in China,and in combination with the provisions of Article 14 of the Criminal Law,it is analyzed that there is room for constructing a dual positioning of intent.Through the analysis of the issues of"whether it is necessary to review the system of negligent crime after denying the intent of criminal responsibility"and"whether the intention of constitutive elements and the negligence of criminal responsibility constitutes an inten-tional or negligent crime",it is determined that if the behavior of the perpetrator satisfies the conformity level of the constitutive elements,there will be no illegal impediment,which leads to the establishment of a criminal liability stage.The liability for the final intentional crime is reduced(reduced to negligence),and if there is no negli-gence,it will be handled as an accident.
关键词
假想防卫/正当化事由的事实前提错误/法律效果转换之罪责说/故意的双层定位
Key words
hypothetical defense/the factual premise mistake of the justification/the theory of responsibility for the conversion of legal effects/double-layered positioning of intention
维普
万方数据