On Unlimited Defense And Its Legislation

Unlimited defense is an important civic rights according to the new Penal,which gives citizens the rights to protect themselves,and encourages citizens to fight against the criminals.Therefore,the legitimate rights and interests can be effectively safeguarded.Unlimited defense is very important practical and historical significance.However, this kind of rights is not absolute,just like other rights.Some drawbacks are founded about the Unlimited defense in current criminal law system, such as the ambiguity of the scope of application,the deviation of the legislation value,unsatisfactory of the practice.Especially the legislative provisions are vague in the 3rd section of article 20 in China's Criminal Law,which leads to some legal loopholes,so that the operability of the rights is affected.Therefore,it is necessary for us to reflect on the pros and cons on the Unlimited defense,to think over limited consequence which may produce in defending behavior,to explore them gradually by normative analysis,case studies and logic analysis.This thesis redefines the scope,time,subject and object of the defense,based on some involved unscientific and loose legal articles and terms in the 3rd section of article 20 in China's Criminal Law,First,to standardize the rationality of the criminal acts showed after the definition of the fuzzy "attack" to "serious injury";Second,to define time limits on defense according to the real danger to the start time as most defense standards.Third,to think over "the reasons of fear,tension or excitement" as an unlimited defense limit on the subjective conditions; Fourth,to engage in a rational evaluation of criminal responsibility which the law has not yet considered in the defense object.So that a more accurate,reasonable,fair and new criminal laws can be constructed, when someone faces serious violent crime in real danger,such as murder, severe injury,robbery,rape,kidnapping,he has to take defensive acts against casualties caused by illegal because of fear,tension or excitement,and is not criminally responsible.