The Research On The "Unlawful Infringement" Of Self-Defense System In Criminal Law

The full text is divided into six parts.Chapter I: The basic scope of criminal violationsIn China ’s criminal law theory， The prevailing opinion seems to be that，Criminalviolations include not only criminal acts， but also the general violations.In other words，even though the behavior of a serious infringement of citizens’ legitimate rights and interestshas not been defined as criminal， it can also become the object of self-defense. Withrelative rationality， the prevailing opinion is in line with the legislative purpose ofself-defense system， and more inclined to protect those law-abiding citizens. But there exista tendency of absolutization， it seems that all criminal behavior can be self-defense， whichis obviously inconsistent with the common judicial knowledge. Therefore， on the premise ofthe prevailing doctrin， we should qualified the specific scope of the criminal violations fromdifferent aspects. First of all， in terms of the form of infringment， being an unlawfulinfringement， none damage to slight interest can be self-defence. The general violations ofCriminal minors and the mentally ills under the special protection and guardianship of thecriminal law are not criminal violations. Any violations without urgency， aggressiveness ordestructiveness， such as corruption， bribery， bigamy， non-violent extortion for falseadvertising， are not criminal violations neither. Secondly， in terms of the criminalsubject， the infringements shall be limited to those done by the natural persons. UnitCrimes， although implemented by the specific representatives or agent of the unit， aregenerally not unlawful infringements which can be defensed. However， any homicide orinjury under the name of the unit is more typical natural persons crime and the object ofself-defense. Finally， in terms of the defensive effect， if the defense to certain criminal actcan not avoid the occurrence of the damages， instead， may also play a " inflame " effect，then that behavior is not criminal violation. Therefore， the initial range of the unlawfulinfringement should be limited to those actions with urgency， aggressive and destructivenessimplemented by ordinary people to the general law beneficial as well as the major law beneficia， or by those irresponsibility to a major law beneficial， as well， the unlawfulinfringement can also be controled by defence.The main manifestations of unlawful infringement for willful active against the form of acrime of negligence and not as a crime may also be the scope of criminal violations. China’scriminal law through said generally denied negligence crime to belong to can the unlawfulinfringement of the defense.The main reason is that the fault of the crime is causing real harmagainst committing the necessary conditions， the criminal negligence of the special crimeof mass determines the establishment of criminal negligence，the real harm to the end of theresults of the occurrence of unlawful infringement， these three overlap each other， theestablishment of criminal negligence that marked the end of the criminal violations， againstthe end of the course， can not defend.Tong said the point of view is not correct. Theestablishment of negligence committed into Potential Damage fault offenders PotentialDamage Offense (such as to prejudice the prevention and treatment of infectious diseasescrime， prejudice the Frontier Health and Quarantine crime， etc.) need only a specifichazardous state， without the occurrence of actual harm results Now that appeared in adangerous state， the real harm results has not yet occurred， can the Potential Damage todefend.However， any homicide or injury under the name of the unit is more typical naturalpersons crime and the object of self-defense. Finally， in terms of the defensive effect， if thedefense to certain criminal act can not avoid the occurrence of the damages， instead， mayalso play a " inflame " effect， then that behavior is not criminal violation. But guilty ofnegligence against the establishment Although it must be real harm to occur as a necessary，but the fault of offenders act aimed Moreover， often exist in space and time interval betweenthe fault committed by the implementation of behavior and the real harm results， therefore，in the implementation of behavior the real harm results urgent and dangerous situation，although not the actual cause real harm results， guilty of negligence against theimplementation of behavior should be allowed to defend.China ’s criminal law through that also， not as a crime can not be self-defense， not asa crime， usually do not have the urgency of the infringement， while for theimplementation of the counter-attack as a crime， it is difficult to reach the effect of thesuppression of unlawful infringement defense.Through said view is unreasonable. Not as a variety of manifestations of crime， has been formed against the urgency and effectivelythrough the implementation of defensive behavior to avoid the real harm results not as acrime， the object of the self-defense.For not as a defense commission of the crime，whether the defense effect， determined according to different situations.In defense ofpeople， I still difficult to take positive behavior directly to avoid the real harm occurred，the defense may not as a violent force performance as an obligation， this defensivebehavior is undoubtedly a defensive effect.People in the defense I can be to implement apositive behavior to avoid the real harm results， they should take their own positive as toavoid results occur， but if the defense to take through injury， not as a force to fulfill itsobligations to defend behavior not as those who did not fulfill the obligation， or is fulfillingor has fulfilled the result is still， be denied the defense of human behavior set upself-defense as an obligation， but the real harm.With relative rationality， the prevailingopinion is in line with the legislative purpose of self-defense system， and more inclined toprotect those law-abiding citizens.The major objective against criminal minors and the mentally ill is no obligation on thecapacity for implementation are illegal infringe range. China’s criminal law pass that isgenerally believed that criminal minors and the mentally ill against the implementation ofself-defense， compromise， said that the objective is no obligation ability against thevictim can not ascertain the identity of the infringer or unusual circumstances before thedefense.But these views are unscientific. The law is an objective evaluation of specifications，regardless of the perpetrator’s subjective ability， as long as their behavior in the objectiveviolation of the law， have illegal sex， are criminal violations. Therefore， the onlycompletely sure no obligation to capacity for the implementation of major infringement arecriminal violations (for defense)， is the the objectivism results worthless on the point ofview， but also truly implement the principle of protection of legal interests.The generalviolations of Criminal minors and the mentally ills under the special protection andguardianship of the criminal law are not criminal violations.People can be attributed to the animal against the unlawful infringement of the defense.Owners bear the responsibility of the constraint management of domesticated animals，animal virulence others， regardless of their owners subjective intentional， negligent or purely accidental， are in violation of the objective "does not make the animal wounding "basic management responsibilities Therefore， the facts of animal virulence attributable to theowners I.Chapter II： Unlawful infringement correction range.Unlawful infringement on the basis of its basic range of scalability in the range.Simple criminal violations of the public interest should not be worth the unlawfulinfringement of personal defense. Modern country under the rule of law are mostly set up theperfect representative system and the state management system，ordinary citizens should tryto avoid drastic interference in the political affairs of the country. According to the statemonopoly of the legal order "thinking， if a behavior is the only violation of the publicinterest to individual citizens ’ rights do not prejudice the ordinary citizen should beimmediately reported to the state organs and look forward to public power in a timely mannerto speak out against， and should not lightly personal defense.In general， for criminalviolations of the public interest， only difficult to expect the national authorities in a timelymanner to stop or while violating personal legal interests， it may become the object ofself-defense.Part of the legal behavior may be criminal violations. According to the illegality ofevaluating the relative principle， such as the emergency， proper job behavior， does nothave the objective attribution-based behavior such lawful acts， the whole legal order islegitimate， but inevitably in the local cause innocent people within the interests of thedamage， so should be allowed to these innocent damaged or other of these legal acts todefend the interests of the innocent.Acts of prejudice to the criminal legal and illegal interests， are likely to becomecriminal violations. Illegal and criminal activities and behavior of people do not have therelevance of the interests of the legitimate rights and interests， criminal law， of course，allow the criminal to artificially protect their legitimate rights and interests and carry outself-defense. Behavior in carrying out the illegal and criminal activities within the scope ofspecific interest， as well as closely related to the illegal and criminal activities， theinterests of illegal profits， but even illegal interests may also be the object of protection oflegitimate defense. Chapter III：The serious criminal violations.Acts of prejudice to the criminal legal and illegal interests， are likely to becomecriminal violations. Illegal and criminal activities and behavior of people do not have therelevance of the interests of the legitimate rights and interests， criminal law， of course，allow the criminal to artificially protect their legitimate rights and interests and carry outself-defense. With relative rationality， the prevailing opinion is in line with the legislativepurpose of self-defense system， and more inclined to protect those law-abiding citizens.Behavior in carrying out the illegal and criminal activities within the scope of specificinterest， as well as closely related to the illegal and criminal activities， the interests ofillegal profits， but even illegal interests may also be the object of protection of legitimatedefense.China’s criminal law pass that is generally believed that criminal minors and thementally ill against the implementation of self-defense， compromise， said that theobjective is no obligation ability against the victim can not ascertain the identity of theinfringer or unusual circumstances before the defense.The attack， the original is not a standard legal terminology. The legislators will be theattack to the provisions in the Penal Code， there may be deliberate use of vague language inorder to delegate the flexibility to consider the judiciary according to the actual situation ofsocial development in the future the object of special defense， but also reflects thelegislative terms are not standardized. The prevailing opinion seems to be that，Criminalviolations include not only criminal acts， but also the general violations.In other words，The attack with two layers of meaning in the specification. The general violations ofCriminal minors and the mentally ills under the special protection and guardianship of thecriminal law are not criminal violations. The basic meaning of the murderers is seriouslyendanger the health and safety of human life， the violent manner of the murder， injurybehavior.But the perpetrators of violence should not be qualified to use the weapon to a lesserextent against capacity in the number of criminal violation of the victims of the number ofdefense capability difference of disparity in criminal violation， even bare hands to attackeach other， but also completely may seriously jeopardize the personal safety of victims ofnature， of course， should permit the implementation of the special defense. Correction meaning of the attack， the attack on a basis consistent with its basic meaning， willdetermine the intentional murder situation was spun off from the meaning of the murderers.The eventual scope of the attack including the intentional injury (or to kill or hurt) theuncertainty intentional murder in both cases.Murder， robbery， rape， kidnapping， criminal means to understand. Namely，murder， robbery， rape， kidnapping， both intentional homicide， robbery， rapeand kidnapping of these four crimes， including criminal law legal fiction， cf. These fourbasic criminal processing or application of this four crime the punishment to the crime，including the use of these four specific means to implement and committing other offenses ofthe crime.Murder， robbery， rape， kidnapping must be " seriously jeopardize the personalsafety of violent crime， violence， the extent required by some difference， take theviolent manner of murder，robbery and kidnapping，must meet may cause serious injury，death the severity can only be a special defense; adopt violent means to implement the act ofrape， is not required to reach this level.Seriously jeopardize the personal safety of violent crime， reveal all the details about theobject of a special defense clause. The content of personal safety can only limit is interpretedas the core of personal ownership of the life， health and sexual autonomy， not onlypersonal safety interests， including residential， privacy， personality， reputation.General self-defense and special defense in the judicial application of the rank relations.Defendant contested cases to self-defense should be handled in accordance with the following" Trilogy ": The first step20of the Penal Code， the provisions of paragraph1of theguidelines to judge whether this case the victim against the defendant in the ongoing criminalviolations; a second step， draw in the first step on the basis of an affirmative answer is still20， paragraph1， of the Penal Code as a guide， then judge the condition of thedefendant in this case whether the conduct of the establishment to comply with the generalself-defense， in particular， depends on their behavior in line with defense limitconditions.Obtained the affirmative answer， the defendant’s conduct is the eventualestablishment of general self-defense; if drawn negative answer， the defendant’s conduct istemporarily set up gone too far; third step， the negative responses obtained in the secondstep (that is the case the defendant human behavior is temporarily set up gone too far) on the basis of the final judgment under the guidance of the Criminal Code of the provisions ofArticle20， paragraph3， and unlawful infringement case the victim is a " murderers，murder， robbery， rape， kidnapping and other serious threat to personal safety violentcrime， if obtained an affirmative answer， the defendant’s conduct is eventually set up aspecial defense; if drawn negative answer， the defendant’s conduct is the eventualestablishment of gone too far.chapter IV: The source of criminal violations.In judicial practice， a lot of harm cases are melee evolved. These injury cases， thedefendant eventually leading to a period of time prior to the victims of serious injury or deathresults， the defendant may be completely on the defensive， from the local point of view，the defendant counter-attack victim ’s behavior appeared to be consistent with the conditionsof legitimate defense.Judicial order to the defendant’s defense behavior is identified as"suspected" crime of intentional injury， the existence of old and new are two approaches.The old idea is to clear the damage involved in fighting the defendant has deliberately(possible lack of defense means) directly negates their behavior to the establishment ofself-defense. China’s criminal law pass that is generally believed that criminal minors and thementally ill against the implementation of self-defense， compromise， said that theobjective is no obligation ability against the victim can not ascertain the identity of theinfringer or unusual circumstances before the defense.This line of thought is the defensemeaning is necessary to say that the premise for the theory， but even adhere to the defenseof meaning is necessary that the defendant has against the intention of the facts， it does notdoes not have defensive intent. Therefore， the old ideas are not scientific.New ideas from fighting behavior is based on fighting two sides committed themselvesto the behavior (or constructive commitment to the behavior) which point， according to theinterests of lacking principle， rule out the existence of criminal violations and then deny thedefendant’s conduct to the establishment of self-defense. Should be recognized that fight theunlawful infringement of the new ideas in resolving this issue with the relative rationality，but this idea did not provide appropriate positive program for the comprehensive settlement ofthe criminal violations of other issues in self-incurred.Acts of prejudice to the criminal legaland illegal interests， are likely to become criminal violations. In this paper， the old and new， said outside and draw on the beneficial ingredients inthe theory of the causes of violations， a third idea. The idea is to fighting caused by illegalviolation to be studied as part of this big problem of self-incurred criminal violations， itseeks to resolve all the issues involved in the exposed himself to criminal violations field. Inthis vein，the defendant criminal violations they incurred to fight back and caused a person toserious injury or death， it should be divided to resolve its criminal liability.First， if thedefendant’s counter-attack behavior does not meet the conditions of the establishment of thelegitimate defense investigated the defendant’s criminal responsibility is not the obstacle. Forexample， incurred by the defendant’s behavior cause each other to attack each other’saggressive behavior is entirely possible to set up self-defense self-defense course， can nolonger be self-defense， can be investigated directly the responsibility of the defendant ’scrime of intentional injury. Second， if the defendant’s counter-attack actions are consistentwith the legitimate defense set up conditions should be identified as self-defense， but thatdoes not of course exclude the defendant’s criminal responsibility.Because of the defense，the defendant in the defense prior to the implementation of causal relationship between sincetrick violations (behavior) of the reasons the defense between the results with this causalrelationship is not involved in my self-defense interruption， results also have against thenature of the results generated by the self-move behavior (illegal behavior) of the reasons，the defendant in the implementation of the self-move behavior on the results of each other’svictim generally has a fault， therefore， can be within the range of subjective and objectiveunity of the defendant the implementation of the responsibility for the content of self-movebehavior to be held criminally responsible.Specifically， if the defendant in theimplementation of the self-move behavior has intentionally harm each other， can beidentified as the crime of intentional injury， the defendant， though not in theimplementation of the self-move behavior has hurt intentionally， but later killed resultswith the possibility of understanding (negligence)， can be identified to the crime ofnegligence causing serious injury crime or negligence causing death.chapter V: The period of unlawful infringement.Criminal violations in progress， that the unlawful infringement has not yet ended， thisis the urgency of the condition of self-defense. Start time for criminal violations of criminal theory to enter the scene， proceed directly facing and comprehensive divided. I adhere tothe Comprehensive Under normal circumstances， the self-defense only has started theimplementation of criminal violations (begin)， but the illegal violation has not beenattacked， but the real threat has been very significant， they can be identified criminalviolations has begun (directly facing). Unlawful infringement of the end time， it should besubject to criminal violations have been impossible to continue the assault or threat of legalinterests， criminal violations have been excluded.The general violations of Criminalminors and the mentally ills under the special protection and guardianship of the criminal laware not criminal violations. The basic meaning of the murderers is seriously endanger thehealth and safety of human life， the violent manner of the murder， injury behavior.End time associated with criminal violations， criminal violations has resulted in thefinality of the results (crime accomplishment)， but against the losses caused to the spot torestore the case， whether there is unlawful infringement of the defense. On this issue inrecent years to criminal judicial field to reflect the more prominent cases: the behavior ofpeople robbed or chase the robber decisively driving the transport of others robbed and causeeach other serious injury， death， and whether to establish a legitimate defense? For thisproblem， there is self-defense， gone too far， and after the defense said the threeperspectives. In principle，this article adhere gone too far.Finally，in terms of the defensiveeffect， if the defense to certain criminal act can not avoid the occurrence of the damages，instead， may also play a " inflame " effect， then that behavior is not criminal violation.Need to consider two questions: First，there may still be robbing crime accomplishmentongoing criminal violations. In criminal law theory， according to the real harm resultsending with the crime， can be real harm committed divided into Serve guilty， the statecommitted and continued to commit. Serve guilty of characteristics， in the event ofresults， crime will be the end of legal interest are also eliminated， so most of Servecommitted (such as intentional homicide) Accomplished Under normal circumstances doesnot exist the implementation of criminal violations of the defense， but a small part Serveafter committing the crime (such as intentional injuries) Accomplished， still have a chanceof self-defense.Continued to commit the characteristics， the results occur， criminal constitutes compliance continue to meet， so last commit (such as the crime ofkidnapping， illegal detention， etc.) Accomplished， of course， there is theimplementation of criminal violations of the defense. Guilty of the characteristics of the stateto seize the property crimes of robbery， theft between the middle of the two above， theoutcome occurs， crime， although the end， but continuing legal interest against thestate， robbery (committed state) consummated after the implementation of self-defense. Ifyou adhere to compromise standards， there are significant criminal violations can beidentified in such cases， the police can be a special defense; objective criteria， thesucked criminal violations of the judge behavior based on the objective existence of allfacts， facts and behavior may be predictableThe second is the need to robbery against the nature of the crime accomplishment thedefense of the limits of a reasonable set. After the robbery is consummated， although therobbery before the murder of the property against the continuing， but due to the escape ofthe robber， robbery implementation against the original for the victims of personal propertyhas been lost. In other words， against the robbery by the crime accomplishment continues atthe same time， downgraded to a simple major criminal violations of the victims of personaland property to property offenses， only the general self-defense. In considering the limit ofdefense， you need to join the chase behavior of risk judgment.Generally speaking， thevictims or those courageous chase robbery suspect is prone to collisions， and to protect thevictims of the normal performance of the chase the right should be recognized that the robbervictims or courageous in the chase on the way to cause harm (including serious injury) resultsis chase behavior in a reasonable range of risks covered by the proper results， but therobber death is obvious when the infringement results.Therefore， for the victims orcourageous chase the robber， causing the robber injured and the following consequencesthat the establishment of self-defense，causing the suspect to death was established gone toofar. In this paper， the old and new， said outside and draw on the beneficial ingredients inthe theory of the causes of violations， a third idea. For gone too far， should be resolvedin accordance with the subjective understanding of the victims of his criminal responsibility:If the victim is intentionally killed the robber， the establishment of intentional homicide of a minor nature， and gone too far the provisions apply， it should be to reduce or waivepenalties; if the victims of negligence killed the robber， the establishment of negligencecausing death， and gone too far the provisions apply shall be exempted from punishment，but also according to the provisions of article13of the Penal Code but the book， excludingthe establishment of the crime.Set for the defense in the future and unlawful infringement defense installations， andset the course， bear the responsibility for properly set. I adhere to the Comprehensive Undernormal circumstances， the self-defense only has started the implementation of criminalviolations (begin)， but the illegal violation has not been attacked. Defense device is set toeffectively put an end to the ongoing criminal violations， and did not significantly exceedthe necessary limits， to cause significant harm， it can be identified as self-defense.Chapter VI: The benchmark of criminal violations.The basis of the judgment of the criminal violations， criminal law， in theory， thegeneral existence of objective and subjective would say both. Civil law countries，including my own theory of criminal law generally adhere to the objective that the unlawfulinfringement must exist in reality， not a defense subjective imagined. Only actuallyhappened in the case of criminal violations， the issue of self-defense. On the contrary， nocriminal violations in the objective，but the behavior of people mistakenly believe that thereare criminal violations， and causing harm to another， the so-called defense can only setup a hypothetical defense.However， common law countries and regions， mostly agreewith the subjective， said that the defense has reason to believe that there is to defendhimself against. Within the subjective said， there are actors based on their own subjectivestandard of good faith (Show details for home home Show details for homicide) convincedduly recognized by the third person of the rational basis for a reasonable (reasonable)standard distinction. In general， a reasonable standard is modeled on the good faithstandard and attach more stringent conditions on the basis of only these conditions onlywithin the scope of the discretion of the judge in order to realize value.However， the difference between objectivism and subjectivism said basically a mereformality. Objective，though not the existence of unlawful infringement，but the behavior of people mistakenly think that the existence of the circumstances， objectively say falsewant to deal with defense， it negates the establishment of the willful， if the perpetrator’smistake there， the establishment of the accident; subjective said the general this situationhandled according to self-defense.For the objective existence of unlawful infringement，but the behavior of people know nothing about the case， subjective general intentionalcrime (accomplished) and objective is usually this situation in accordance with theoccasional defensive processing， accidental defense exists objectively say that the contentAccomplished on the intentional crime， attempted on the battle of the innocence ofposition， and Accomplished On an intentional crime or attempted on the pass， said，this is subjective to say the conclusion is very close to.The existence of a class of so-called "false assault cases in the judicial practice. Themodel of such cases， the perpetrator holds a seemingly highly lethal weapon， theimplementation of the criminal violations of the "high intensity" defense to implement a basicmatch of defensive behavior against strength， leading to the aggressor injured， deathHowever， after identification of the weapon is false.Around such "false assault case iswhether there are significant criminal violations， and that two options exist within thecompromise standards and objective criteria in objective benchmarks for criminalviolations.Finally，in terms of the defensive effect，if the defense to certain criminal act cannot avoid the occurrence of the damages， instead， may also play a " inflame " effect， thenthat behavior is not criminal violation. Compromise standards， the judgment of the criminalviolations based on the behavior rational third person was able to recognize the foreseeablefacts and behavior in particular， recognize predictable fact. In this paper， the old andnew， said outside and draw on the beneficial ingredients in the theory of the causes ofviolations， a third idea. If you adhere to compromise standards， there are significantcriminal violations can be identified in such cases， the police can be a special defense;objective criteria， the sucked criminal violations of the judge behavior based on theobjective existence of all facts， facts and behavior may be predictable.If you insist onobjective criteria， can not be considered in such cases criminal violations， police shot andkilled "false infringement of human behavior can only deal with the imaginary defense， the police only in case there is a reasonable basis may be exempted from liability. This articleadhere to objective criteria.