Comparative Research On Chinese And Korean Self Defense System

Korea has been the friendly neighboring country of China along the history. In recent decades of years, for Korea has paid more attention to economic prosperity and legal system development, so it rapidly grew up and ranked itself as one of developed countries in the Asia. The modern criminal law theories of Korea and China are both deeply rooted in the theories of civil law system. However, Korea adopts more criminal law theories from Germany and its criminal law is very similar to German criminal law, while China adopts more criminal law theories from late Soviet Union in its early days of establishment. In recent years, with the development of research on Chinese criminal law theories, the academic circles of China make more and more researches on criminal laws of those countries from civil law system, such as Germany. China and Korea have made much communication in the area of economy, trade and culture, but the communication in the area of law is much less. Therefore, the comparative research on criminal law theories of China and Korea can help to promote the academic communication between two countries, facilitate mutual learning and improvement of respective criminal law theories and enhance the collaborative development of criminal law theories of both countries. Among all criminal law theories, the theory of self defense is deeply related to the culture tradition of a country and closely bound up with the culture background of a nation. Therefore, this thesis makes a sectional comparative research on the criminal law theories of China and Korea based on this topic, with the expectation to provide relevant materials for both countries'criminal law academic circles and a cut-in point for mutual study.　 The thesis is divided into four parts except the part of introduction, and has about 43,000 characters in total (including over 5,000 characters of footnotes). This thesis provides a systematic comparison and analysis on the theories of self defense existed in criminal law of China and Korea and induces the merits and deficiencies of both countries'theories of self defense, based on the research methods of comparison, analysis and induction. It makes a contribution to the mutual reference of theories of self defense between two countries. 　 The first part of this thesis is an introduction, which introduces and generalizes the overall development tendency of self defense theories and systems in the human society. It set a foundation for the discussion hereunder. 　 The second part of this thesis is the comparison of the concept of self defense between China and Korea. Starting with the introduction to significant amendment on self defense system in China's Penal Code of 1997, it provides a reference on the concept of self defense in China and Korea. Afterwards, the author makes an analysis and comparison on the concept of self defense of both countries. Finally, he comments on the differences existing in the concept of self defense between two countries.　 The third part of this thesis is the comparison of constitutive requirements of self defense between China and Korea. This part is where there are much more differences in the criminal law of China and Korea. The author firstly introduces the general constitutive requirements of self defense in China and Korea, and then he makes a comparative research on preconditions and requirements of time, objective, subjective and limitation of the constitutive requirements of self defense one by one.　 The fourth part of the thesis is the comparison on determination and criminal liability of unjustifiable self-defense in China and Korea. The author makes thispart into two subdivisions of unjustifiable self-defense's characteristic of constitution and its criminal liability, when he is comparing the differences in theories between two countries. In the comparison on characteristic of constitution of unjustifiable self-defense, through the comparison on the objective characteristic and subjective characteristic of unjustifiable self-defense in China and Korea, the thesis introduces the coincidences and differences in the constitution of unjustifiable self-defense between both countries, analyzes and induces the theories of both countries which may be used for mutual reference. In the comparison of criminal liability of unjustifiable self-defense, the thesis introduces the difference lies in the criminal punishment on unjustifiable self-defense between two countries and provides a corresponding comment on the difference.　The fifth part of the thesis dwells on the principle of boundless defense right which is a particular principle in Chinese criminal law. In this part, the author firstly introduces the legislation background of boundless defense right, and then its legal characteristics, finally makes an assessment and criticism on the principle of boundless defense right.