The Jurisprudential Research On The Right Of Defense

Self-defense is a common phenomenon that often appears in society.There are many existing studies that takes self-defense as a cause to prevent illegal behaviors,while there are few studies that takes self-defense as a right.Self-defence is both a natural right and a legal right;it is both a right between the infringer and the defender,as well as a right between the individual and the state;it is both a right based on objective facts of infringement and a right used by the owner of the defense right after judgment.Based on the dual needs of theory and practice,right analysis method,semantic analysis method,and literature analysis method and other methods are used in this paper to carry out studies around self-defense right.In this way,we can comprehensively know that,self-defense right,as the right to stop and a kind of behavior in one of private relief arrangement system,can also provide a relatively complete interpretation framework for some outstanding issues related to self-defense right in the current judicial practice.The first is the overview of self-defense right.The defense behavior evaluated by department law is only a key part existing in the phenomenon of the self-defense right,but not a complete set of the right behavior.In other words,establishment of self-defense right should not only serve to hinder illegal behaviors but should also have a broader connotation: it is a kind of right to stop from the core purpose of the right,a kind of right to cause damage from attribute of private relief,a kind of right to misjudge from the behavior pattern of the state of emergency,and a kind of right to avoid from the basic structure of rights.Thus,research field of self-defense has been greatly broadened,and many radiation effects have been produced:Firstly,what is the essence of elements that have been summed up in relation to self-defence? If there is a narrow view on this issue,it will easily affect the judgement of its development trend.So,we should not only guard against the unbearable evaluation on historical facts given by the Whig View of History,but also make a relatively clear distinction between behaviors of self-defense right and revenge,lynching and other behaviors similar that of self-defense.Secondly,object of self-defense right is the infringer,which reflects in the infringement of the right boundary between individuals based on violation of obligations.However,self-defense is also a kind of obligation entrustment and authorization execution based on the infringement relationship between individuals and the state.Thus,complete self-defense framework should not ignore "Right-Power" factor behind the application of this right.Finally,concept of self-defense right can be understood differently from different perspectives: from the perspective of language,it reveals the cognitive conflict of self-defense between "Vulgar Category" and "Systematic Semantic";from the perspective of ethics,connotation difference of the same concept in different contexts is demonstrated through the hierarchical thinking of the concept of "Legitimacy";from the perspective of system,it shows the basic logic that the interpretation of self-defense right(has becomes a department law)with the evaluation of the illegal behavior as the main axis,which makes it difficult to condense the concept of self-defense right from top to bottom in a comprehensive and systematic way.It is necessary for us to discuss self-defense right in depth to reveal the orientation difference of the same concept in different contexts.The second is the proof of self-defense right.Hohfeld's right framework analysis shows us the specific orientation of self-defense right in different contexts: as a right,self-defense right is a right of claim,a right of liberty,and a legal power and immunity right.Essential attribute of self-defense right is the right to stop,and its specific form includes the right to stop,the right to cause damage,the right to misjudge and the right to avoid.Interpretation of legitimacy of self-defense is analyzed from outside appearance to inner essence through the defense images created by discourses including “Punisher”,“Passivity becomes a lethal tool”,“People who is left with no room for retreat”,and other images.Some of them can only be used to proof partial acts related to self-defense right,and some of them can only serve the legitimation argument that are completely different from the purpose of self-defense,so they can't undertake the task of explaining the essential attribute of self-defense right-legitimacy.So,conducting an analysis on the right introduction is particularly necessary.To be more specific,self-defense right in a certain specific context means:Firstly,in the individual communication not limited to the context,it is necessary to design a defense right system with private relief as the purpose.It is necessary to design a defense right system with the purpose of private relief.The suspension of legal interests caused by the violation of obligations makes the legitimacy of defender's behavior different from that of the infringement behavior.In other words,it is the legitimacy in the meanings of “Right-Right”,the legitimacy that enjoys the right,or “Can Do” of implementing the self-defense right.Secondly,in a specific context,specific individual with self-defense right can perform the above right according to related norms and standards,then have the actual behavior of stopping,causing damage or avoiding,and generating the corresponding legal relationship with the related subject.In other words,it is the legitimacy in the meanings of “Right-Right”,the legitimacy that enjoys the right,or “Can Do” of implementing the self-defense right.Finally,in the "Open Boundary" part concerning the connotation of defense,that is,in the specific context in which the judgments and conclusions of the individual perspective and the whole perspective conflicts,an economic way of thinking about risk sharing is advocated: at this time,defense right serves to regulate the unlawful infringer's behavior,indicating that the behavior is legitimate because of the confirmation of the right,rather than that the right is confirmed because of its legitimacy.In a word,it can provide a relatively self-consistent interpretation scheme for the operation of the self-defense right by studying and advocating a mode of thinking based on modified version of dualism,which takes “Can Do” and “Should Do” as the consideration,general right frame as the basis,and risk sharing as the supplement.The third is the application of self-defense right.It is an indisputable fact in judicial practice that it is difficult to identify self-defense.To push forward the solution of this problem,we should adhere to the logic orbit of "Justice-Legislation-Legal Theory",reflect on constitutive elements with legal theory,and then explore the "Open Boundary" part corresponding to the "Word Center" in the connotation of defense right.Therefore,it should be considered from the two dimensions: qualitative elements,namely object elements,prerequisite elements,time elements and subjective elements,and quantitative elements,namely limit elements.For qualitative elements,object elements are the most important,and it doesn't focus on "what should the right of defense be applied to",but on "what interests of the infringer can the right of defense be applied to".Prerequisite elements is to determine what are the elements of unlawful infringement,which can be regarded as the elements to measure the extension of logical scope of the right of defense.The identification of time elements needs to refer to a realistic standpoint and the standard of the right of defense,rather than the objective reality of infringement.The key to the identification of subjective elements lies in the reasonable delineation of the elements that constitute the corresponding criteria and the reconstruction of the judgment of the subjective aspects of the behavior with the bottom-line thinking.For quantitative elements,absolute standards and relative standards are taken as the basic framework for understanding the problem of limits,and divergence and perfection trend of the theory of adaptation and the theory of need are used to examine the difference and fusion trend of the two.Essential attribute of self-defense is the right to stop,so keynote of the logic of self-defense right should be to say that corresponding requirements can only specifically serve the former and constitute a second-order standard.Therefore,it can conclude that excessive defense clause and special defense clause will give us a new understanding of the system and function of self-defense right.