On Unjustifiable Self-defense

The determination of unjustifiable self-defense has remained a problem injudicial practice. Major changes have been made to unjustifiableself-defense to the existing criminal law in China today. The problem ofhow to properly understand the concept of unjustifiable self-defense andjudge whether it is unjustifiable self-defense has aroused attention fromresearchers. Accessing the concept from its generation this paperstudies the concept, nature and manifestation of unjustifiable self-defensewith the stress on the subjective and objective component of unjustifiable elf-defense so that unjustifiable self-defense can be properly handled injudicial practice and a clear delimitation can be found to differentiate guiltfrom innocence. As a result, citizens can also properly and activelyemploy their right of self-defense.This paper is divided into six parts:I. The generation and formation of the concept of unjustifiableself-defenseUnjustifiable self-defense originates from the limitation on the right ofself-defense. In the first part, the author studies from the perspective ofthe combination of history and logic the evolution of the right ofself-defense in the development of criminal laws in China and the West, 1from which the rule of evolution is revealed, i.e., all nations haveexperienced the course of evolution of the right of self-defense frominstinctive behavior to limitless to broad limitation and finally to strictlimitation. The author also goes further to explore the basis of thedelimiting conditions of self-defense from the aspects of the theoretical,value and legal bases of self-defense. Based on this study, the authorpoints out that self-defense should comply with the delimiting conditionsspecified by the law although it stresses the cause and defensiveness ofthe act of self-defense. The violation of these conditions results inunjustifiable self-defense that is unprotected by the law.II. The concept, nature and manifestation of unjustifiableself-defenseFrom the analysis of the concept of unjustifiable self-defense, the authordefines the relationship between unjustifiable self-defense and justifiableself-defense, i.e.,, self-defense is a subordinate concept of unjustifiableself-defense and justifiable self-defense and that whether self-defensecomplies with the delimiting conditions is the limit between unjustifiableself-defense and justifiable self-defense. Moreover, the author points outthat the concept of unjustifiable self-defense is "self-defense that causesgreat injury to the infringer and the extent of which apparently exceeds thelimits of necessity". Based on this analysis, the author analyzes the natureand manifestation of unjustifiable self-defense and further points out thatunjustifiable self-defense is not only defensive but also guilty subjectively,causing objective harm to the society. Unjustifiable self-defense as thecombination of self-defensive act and defensive result cannot beseparated into unjustifiable act and unjustifiable result.III. An analysis of objective components of unjustifiable self-defenseIn this part, the author analyzes the objective components of unjustifiable 2self-defense from the three aspects of the concept of the limitations ofnecessity, the definition of delimiting conditions in the existing criminal law,and how to determine unjustifiable self-defense in judicial practice. Byintroducing the legislation and theories of unjustifiable self-defense incriminal laws of China and abroad, the author points out that thecomprehension of "necessary limit" should be based on "the theory ofappropriateness" while the comprehension of "delimiting conditions"should be based on "the theory of request". However, it should bestressed that there is no loss of balance between the damage caused tothe infringer by the self-defense and the potential damage caused by theinfringement. There...