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On The Over-defense Of Our Country's Criminal Law

Posted on:2011-05-20Degree:MasterType:Thesis
Country:ChinaCandidate:Q H ZhangFull Text:PDF
GTID:2166360305481374Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
Over-defense has a very important position in self-defense system. it is a difficult question that how to correctly grasp the distinction between self-defense and over-defense from the theory. From the 1997 year's criminal law legislative value on right of the defense and social impact, the criminal law further strengthened the right of defense when people face to illegal violations;from the view of the legislative language and the rigor,The new criminal law adopts a more objective criteria to minimize subjective factors,which makes self-defense system more humane, in judicial practice also has a certain degree of operability. However, the provisions of the law, after all, are abstract,our laws can not be achieved at once, making specific and comprehensive provisions to self-defense and over-defense cases. moreover,with the complexity of a number of defense cases in real life, it is more and more difficult to grasp the case of over-defense correctly. An undeniable fact is that there are some deviations and errors when the judicial officers understanding the cases of the over-defense.For example, the standards of over-defense is too strict,which should be a case of self-defense,because of the results of significant harm,but as an over-defense to deal with.In addition,the over-defense cases almost viewed as an intentional crime,neglecting the distinction a crime from not a crime,one kind of crime from other crime,felony and misdemeanor.For these reasons, this paper from the basic theory of the over-defense,making a research to the system of China's over-defense. This paper points out some erroneous tendencies in judicial practice and the author's Opinion,discussing the identification of cases of over-defense in the judicial practice and legislative refinements of the self-defense.The full-text is about 30,000 words, which consists of four parts in addition to the introduction and conclusion.The first part, an overview of over-defense.This section first introduces the grounds of the existence and the right of should be restricted, thereby to illustrate the reason of over-defense in legislation,Secondly, through legislative evolution of the different periods of China's over-defense system, expounding the concept of over-defense and further discussing the essential characteristics of over-defense on the basis.The second part,the criminal Constitution of over-defense.this part is the core and focus of this paper,the subjective and the objective aspect of over-defense is the focus of this section,This section through the use of the basic theoretical knowledge in criminal law and combine with the actual situation in the judicial practice,making a more comprehensive detailed analysis to the subjective guilt of the over-defense.This paper argues that the subjective aspect of over-defense may be an indirect intentional ,also can fault, in most cases is fault.In the objective aspect of over-defense, the paper carried out a comprehensive definition of the "clear", "necessary extent", "significant harm" and other legislation language.This part is the highlights and innovations of the full text,although the using of the previous theoretical knowledge of criminal law, the paper discusses the reasons more fully and the author put forward own views to the error tendencies in judicial practice.The third part, the criminal responsibility of over-defense.This paper first pointed out that the over-defense is a crime and put forward the reasons for over-defense should be responsible.At the same time the author see that the over-defense is different from ordinary criminal acts, further discussing the over-defense should be punished according to relief secondly, this paper finds that the over-defense cases depends on the offense committed by the criminal defense of people in sub-specific offenses.,which can not be generalized as "over-defense crime.Finally,the paper describes the attentions to the problem of the sentencing in the actual situation.The fourth part, the criterions of over-defense in the judicial practice and the legislative comprehensive proposal.According to the understanding of the over-defense and the actual situation of judicial practice.the paper raises the general standards and specific standards of over-defense cases.in addition, in order to better play the role of self-defense system in real life, the article raises a sound proposal to the relevant provisions of the defense system.
Keywords/Search Tags:Self-defense, Over-defense, Necessary limitation, Judicial cognizance
PDF Full Text Request
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