On Special Defense Right

The 3rd clause of 20th article in Chinese Criminal Laws is named as unlimited defense right or special defense right clause, which is the organic integration of protection function and safeguard function of Criminal Laws with its existing value. Since the article published, it brings universal dispute of scholars. Chinese Penal Code ruled legitimate defense and defined unjustifiable self-defense as the undue harm action caused by legitimate defense surpassing necessary limit. It should say that such regulation is unassailable in legislation, because necessary limit—such a probative regulation grants the task to divide legitimate defense and unjustifiable self-defense to judicial organization. Reading real condition of judicial practice since criminal laws in enforce in 1979, judicial organization masters legitimate defense and its limit conditions rigidly. During handling defense cases, it doesn't truly grape the purpose of legitimate defense legislation and usually claim defender. In some extent, it takes legislation of legitimate defense as the law to punish defender and twists law image of legislation defense. The result is, case should be handled as legitimate defense but as unjustifiable self-defense and investigated for criminal liability, which mixes demarcations between crime and non-crime. In addition, the case should be handled as unjustifiable self-defense, but handled as general case without extenuation or mitigating punishment and mixes the demarcations between light crime and heavy crime. Above all injure the citizens'activity against illegal and criminal heavily. Hence, how to hold the limit of legitimate defense is a focus problem in revising Criminal Laws in 1997. Broaden the conditions of legitimate defense is the common opinion of theory circle and legislative body. However, whether grant citizens the special defense right to against illegal defense has various ways. For dispute of this clause meaning, there are two propositions in academic world, they are unlimited defense right and special defense right. Most people consider it as the regulation for unlimited defense right and further consider that out of legitimate defense, laws grant citizens the unlimited defense right to protect their lawful rights and interests, which is named as saying of unlimited defense right. Rather, saying of special defense right thinks that what 3rd clause of 20th article in Criminal Laws regulates is defense right under the condition of special regulation. Compare with the first clause, if the later is named as general defense right, the former can be named as regulations of special defense right. It should say that abandon the wording of infinite and gradually gain the cognition of more and more scholars. Basically speaking, special defense right is one kinds of legitimate defense right, while unequal concept to it, enforcement of special defense right is controlled by necessary limit. Reading the legislation background of establishing special defense right, seen that based on absorbing and reference foreign advanced legislation reasonably, special defense right system is set out according to our actual situation. It has the unique characteristics different from general defense right, which is in application range of special defense right, protection target and other aspects should require more strictly than general defense right. Whether good is bigger than harm of harm is bigger than good for establishing special defense right is also the frequent issuing problem. For this is appears positive saying and negative saying. Most scholars hold that addition of 3rd clause of 20th article in Criminal Laws makes the excessive expansion of defense right harming personal right safeguard function of Criminal Laws. It causes the improperly transition of State Penal Powers and even has the danger to destroy law government. The inspection of judicial practice finds that flaws still exist in the clause of special defense right. It needs to explain and correct in order to better guide and practice.This thesis is divided into 4 parts:In the first thesis, firstly it begins with introduce to title dispute of special defense right and discusses the basic ideology of it. Both unlimited defense right saying and special defense right saying take 3rd clause of 20th article in Criminal Laws as the paralleling clause with 1st clause. That is to say, both of them think the exertion of defense right regulated by this clause isn't controlled by the 2nd clause. Essentially, special defense right is equal to unlimited defense right. Secondly, it summarized the history of special defense system. Seen the origin of unlimited defense right, it often goes with legitimate defense. Recorded, there is no right limit as exertion of defense right which is the true infinite defense. Up to feudal society, unlimited defense right begins to have limit such as time, etc. To bourgeois revolution, enlightenment thinker adopts individualism as the beginning to indicate the nature of legitimate defense and take it as one of human right endowed by God. It emphasizes the individual right is holly and inviolable. The exertion of individual rights just take guarantee other members enjoying the same right as its limit. In addition, personal rights are infinite and no one can interfere. Such idea causes the thought of unlimited defense right. Finally, it discusses the general meaning of special defense right.In the second thesis, it briefly introduces the legal principle support of special defense system and indicates in three aspects. The danger made by defense action to crime's personal rights and interests is equal to danger made by special violent crime to citizens'lives and health. In special crime, under the situation of no time to appeal to highest public benefit and untimely protection and impossible to make up violent law benefit, laws should restore the natural right and free belongs to human beings originally. Violent person can use the means and ways equal to violent activities to guarantee their own right and interest in order to make up loss caused by invalidation of prohibitive provisions of laws. Above is the right original standard. If in some case there is no hope to make legal action, then loss not caused by this legal action can't claim the actor.In the third parts, it explores constitutive requirements of special defense right, which provides the specific standards for justice. The real existence of specific violent defense action is the objective promise of special defense right's exertion, the unique of special defense right, which will change special defense right into a kind of sudden right. According to regulations of laws, it is legitimate and effective to do special defense action in the case of special violent defense action in progress, or will shoulder responsibility. As legitimate defense against defender, special defense is against special violent defenders themselves not other. Special defense right's exertion also requires the existence of defending intention.In the fourth parts, it analyzes Chinese current exiting flaws of special defense right and put forward author's perfection suggestion against those flaws. Mentioning shortness regulated by special defense right,violence bears the brunt of being questioned. Such life language is seen as the fatal flaws of special defense right clause again and again. When its meaning is unclear, it becomes the obstacle suitable for special defense right legislation all the time. How to understand violence influences the determination of defense action directly and impacts exertion of special defense right. In addition, 3rd clause of 20th article in Criminal Laws shows that the body of special defense right made in Criminal Laws is citizens. Such regulation is not proper from the view of Criminal Laws'justice.