Study On The Problems Relating To The Legitimacy Of Justifiable Defense

The 20th article of the Criminal Law of the People's Republic of China stipulates: a person who in order to protect the interests of the state and the public, or his own or other people's individual rights, rights of property or other lawful rights from ongoing unlawful infringement, to stop an unlawful infringement behavior, thus harming the perpetrator, is justifiable defense, and he shall not bear criminal responsibility. From the first section, we can see the justifiable defense means when the unlawful infringement is in progress, the person strikes back according to the urgent encroachment for self defense or others' rights.Since the publication of the Criminal Law, the theory boundary has started to discuss the justifiable defense, some from the essential limitation and judgment criterion of the justifiable defense, some form how to judge over-defensive, and some from the limitation of special defense. The justifiable defense among them is the focus of the discussion. As the author knows, during the judicial practice, the justifiable defense cases are not too many, but each of them always arouses dispute. Therefore, the justifiable defense is a hot topic. Especially in recent years, whether exceeding the limitation of justifiable defense or not, there are a lot of opposite views between common people and experts. What does justifiable defense mean? What standard does the justifiable defense possess? To answer the questions, we need to find out the legitimacy of justifiable defense. Through the survey of the legitimacy, we could get many new, scientific, essential understandings, which is good to solve the problems when carrying out.Only when the need and desire of defending are reasonable and legitimate, and the expressing is proper, the justifiable defense would be legitimate. This article is divided to 4 parts to discuss reasonable and legitimate of the justifiable defense. The first part is the right of the justifiable defense. In this part, the source and humanity basis of the right of defense expound that defense is the foundation of human needs. The justifiable defense is the legitimacy foundation of the agreement. Social Contract Theory is the reason justifiable defense of legitimacy. Part 2:value analysis of justifiable defense. In this part, order is considered to be the basis value of justifiable defense. Justice is core value of the justifiable defense, beneficial result is the direct justifiable defense value, liberty is the final justifiable defense value. The third part: the limited necessary of the justifiable defense. The current criminal law, the provisions of the second paragraph of article justifiable defense obviously than necessary limits and causes serious damage, he shall bear criminal responsibility. For the necessary limitation of the judgement criterion of justifiable defense, it is advocated to taking an effect to stop unlawful infringement. Presume the essential limitation, which should consider the personal objective conditions and the unlawful infringement objective conditions, encourage the behaviors of justifiable defense to suit our national conditions, furthermore, the meaning of a word:obvious is analyzed in this item. The forth part:the legitimacy of special defense. This part expounds the relation between special defense and justifiable defense is the same as the special and the common. Through the revise about the terms of justifiable defense by the government in 1997, adding the terms of special defense is fit in with the national conditions. And there are statements about the understandings of doing violence, raping, robbing, kidnapping and other violent crimes. In the end, combining the cases, according to how to add people's concepts to necessary meanings, raise up that couldn't be compared the injuries with the consequences of illegitimate infringement. Whatever making the law and carrying out the law, only when the people's concepts are melted with the necessary connotation of justifiable defense, it will be the perfect combination of the form and essence about the legitimacy of justifiable defense.