Study On The Special Defense Right

The Criminal Law of our country article 20,paragraph 3 provides that: on ongoing violence, murder, robbery, rape, kidnapping and endangering the safety of other serious violent crimes, taking defensive acts against casualties caused by illegal acts does not belong to excessive defense. Combined with the provisions of self-defense system of the 1979 Criminal Law, it provides a special defense right in the form of legislation to the citizens. When the special defense right established, it has aroused strong repercussions in theory, many people said it is right but others not. Then, the academic research of penalty provisions has developed. The theorists debate discusses about the name of special defense firstly, unifies the domestic and foreign research results as well as other nation and local's legislative practice, the scholars proposes so many wide-divided opinions. Then, about the question of special defense's constitution, the educational world has also launched the intense discussion, so many different opinions or theories appeared. As a result of different perspectives, the impact of the establishment of special defense right on judicial practice in China also provided diametrically opposite views. The pros and cons of the existence of special defense have gradually entered the field of our visions.It should be noted that the establish of a special defense right by the amendments to the Penal Code at 1997 , which considers the overall security situation in our society and measures the interests of all parties of our society ,is to fight against serious violence crime more effectively and protect people's lives and property. Differently from self-defense system of 1979 criminal law, the new Penal Code has introduced special defense right which makes self-defense system of criminal law more rigorous and scientific. The improvement is obvious. In this paper, the controversial issues around the special defense right are discussed. The author consider that the title of special defense right is more reasonable and we should grasp its factors by relating the principles of objective with subjective elements ,and the legislation value of the special defense right is positive . The author put forward proposals to improve the existing deficiencies in the legislation by combining the results of theoretical studies.Except the introduction and the conclusion, the article is divided into four parts as follows:Partâ… : An overview of the special defense right. The part focuses on the contents of the following: First of all, I will format a clear concept of a special defense right, after analyzing the academic debate over the title of the special defense right ; Secondly, I will deduce the nature of the special defense right from the two aspects of both property rights and legal property ,and then present you the characteristics of defense right; Finally, there will be a legislative overview of special defense right from the civil law system, Anglo-American legal system, China's ancient legal system, and the New China legislation.Partâ…¡: Analysis of elements of the special defense right. On the principle of the subjective consist with the objective, I would analyze the different elements of the special defense right advanced by different scholar in the theoretical circle and express my own view that the special defense should meet three objective elements such as the prerequisite condition, the timing conditions, and the target conditions, as well as the two subjective elements: awareness of defense, the will of defense , and each of the conditions involved of specific issues will be in full analysis.Partâ…¢: Rational thinking of the evaluation on our existing legislation. there is two opposite attitudes towards the establishment of special defense right in our theory circle ,being for or against. In this part I make my analysis focusing on the negative, from a three-pronged approach below: the principle of balance of interests, the principle of penalties for the exercise of power by national unity as well as the value of the fairness of the criminal law and the protection of human rights functions, I consider that the establishment of special defense right views are more advantages than disadvantages, combined with the social order of China's actual situation.Partâ…£: The shortcomings of our existing legislation and the proposals of the improvements. In this part, I spread out my discussion from the current issue statements of the criminal law provisions such as "attack", "murder, robbery, rape, kidnapping," "threaten the personal safety of other serious violent crimes," these three aspects of understanding and grasp would be the key. What is more, some perfect proposals will be made for our existing problems .Increasing the special defense right in terms of the burden of proof in the proposed law would be considered. Finally, in combination with other countries and regions in the legislative practice, It can be appropriate to introduce "the principle of withdrawal" in order to better protection of people's legitimate rights and interests.