Date of Award
12-2023
Document Type
Dissertation
Degree Name
Doctor of Juridical Science (SJD)
Abstract
Since 2018, China has implemented judicial reforms to expand the judicial application of the self-defense clause. The core of this judicial reform is to treat reasonable but mistaken self-defense as real self-defense by altering the method for determining elements of self-defense. The expansion of self-defense applications is rooted in policy considerations, but its logic in criminal law doctrine requires further scrutiny. On this matter, Anglo-American criminal law has accumulated abundant theories and case materials, but its criminal analysis system differs from China's. In contrast, Continental criminal law has not studied this subject deeply, but it offers a doctrinal framework for distinguishing between justification (wrongfulness) and excuse (culpability). To address China's issue (to justify), drawing on the Anglo-American precedents as thinking materials (which can be justified) and the Continental structured legal discourse as the thinking framework (how to justify), the proposition of "the justification of reasonable but mistaken self-defense" can be demonstrated, leading to the harmonization of criminal law doctrine and policy considerations. In the determination of self-defense elements, there are three closely related aspects: the timing of judgment, the object of judgment, and the standards of judgment. Regarding the judgment timing, a shift from ex-ante to ex-post judgment is advocated. This transition finds its doctrinal basis in utilitarianism within Anglo-American criminal law and objectivism within Continental criminal law. A key challenge lies in resolving the dilemma of the "innocent victim." Regarding the judgment object, a shift from objective to subjective judgment is advocated. The rationale for this transition is the nature of self-defense. The purpose of self-defense is not punitive but defensive—safeguarding the defender. Thus, the object of the crime analysis system should be the defendant (the defender), not the victim (the aggressor). Overcoming the hurdle of subjective judgment involves effectively addressing the risk of an overly subjective interpretation of criminal law. A key challenge lies in addressing the risk of an overly subjective interpretation of criminal law. Regarding the judgment standard, it is advocated to refine specific elements in the “reasonable person” standard within the context of distinguishing between justification and excuse. This approach prevents unjustified expansions or restrictions in establishing self-defense boundaries and reduces the possibility of inconsistent rulings in similar cases.
Recommended Citation
Chen, Qin, "Justification of the Reasonable but Mistaken Self-Defense: a Doctrinal Analysis" (2023). Maurer Theses and Dissertations. 124.
https://www.repository.law.indiana.edu/etd/124