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Outline Of Reverse Defense In Justifiable Defense

Posted on:2011-02-18Degree:MasterType:Thesis
Country:ChinaCandidate:Y P JiangFull Text:PDF
GTID:2166360305957718Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
China's 1997 revised Criminal Code made significant changes and additions in the original self-defense system. It not only relaxed the limits of self-defense, which is for the first time in legislative form to unlimited defense into the Criminal Code to strengthen the victim's protection, but also posed a threat on human rights violations.Currently, the academic for the legitimate rights and interests against improper defense in violation may be under the threat of little deals. Against the defense theory of the defense system is a completed and complementary improvement. Defense is criminal violations against the people from going from the defense of people defense against improper extent necessary defensive actions implemented. Against the defense can set up? How qualitative? How to make? Criminal theories and judicial practice have had no words that this is bound to affect the course of justice. Therefore, put more focus on defense against, resolve differences, reach consensus, would be particularly urgent.China is the offender shall be treated as ordinary citizens to protect their human rights. Since the citizens have the right to self-defense, crime is a citizen. Therefore, they have the right to self-defense. Self-defense is to make the public interest, or my personal or other rights of others from the ongoing criminal violation, the perpetrator of the unlawful to harm the interests of their way to the implementation of a necessary defensive act. As the criminal law protection of human rights, especially the development of the concept of criminal protection of human rights, along self-defense mindset to be a breakthrough, not only is a necessary requirement of modern human rights protection, but also a matter of fact card support. In more occasions, the "victim" and "harm" is demonstrated by the interaction, the interaction of the interaction. Victimization and the victims of the compound is the existence of evidence against the defense in accordance in the criminal offenses against the lawful rights and interests to create situations of urgency against the perpetrators should be allowed to defend itself, this crime against the person who ---- Defense Right Defense should be self-defense inherent meaning, otherwise, this defense is not consistent with the actual process, non-integrated sense of self-defense.Gone too far is the right of defense against the source of self-defense is the defensive line and gone too far in the act is "clearly exceeds the necessary limits," the necessary level of identification, whether the act should be to defend the illegal way to stop the infringement living standard, taking into account the interests of the defensive nature and possible extent of damage, people with criminal damage against nature, extent generally compatible.Defense is not timely, which is a violation of the conditions of time the so-called self-defense defense. It can be divided into two situations:First, pre-defense, which is "in criminal violation not taken place when the so-called defensive behavior"; Second, after the defense, which is "after the termination of the unlawful infringement of the so-called perpetrator of the unlawful conduct defense." Whether prior or subsequent defensive defense, because the defense establishment must have violated the conditions of time, has lost its legitimacy, comes as a class of unlawful infringement, but also the original perpetrator of the unlawful acts of self-defense against the lawless . This judicial practice in criminal theories reached a consensus. However, many scholars attributed to its simple self-defense in general, which is biased. In fact, the two are quite different. For example, although the defense is not timely unlawful infringement, the original perpetrator of the unlawful acts of illegal violations caused, the two are directly linked, that is not timely defense of the victims of unscrupulous earlier; in general self-defense , the victims are often not at fault.On the theory suggests that modern crime, criminal offenders and the occurrence of process is not against the victims of a fixed process, more often, both embodied in the transformation is a mutual interaction, so against people and victims Shenfen is not static, but often translocation. Against the defense must be the original perpetrator of the unlawful misconduct defense against the defense of persons.Self-defense against criminal acts can only be implemented against those who, against the defensive behavior can only be implemented for the wrong man defense, which refers to criminal violations of both acts. In the inverse defense, the defense objects to the ongoing defense against the improper behavior of people. The improper defense in most cases the original defensive person, third person may be defensive, but no matter who, as long as the existence of inappropriate defense, did not affect the defense against the establishment.Improper defense is going against the defense of the time element. This interval is caused by improper defense against already begun, not ended. Defense against the start time should be, defended when the infringement is obvious and urgent, if not carried out against the defense has been irreparable loss. Against the end of time is the defense, defense against the defense against improper facing over, against the wrong people out of defense and defense of the pressing reality of threat.It must be implemented only against the defense of last resort. Self-defense in the defense often has no legal fault, not even moral reprehensible, and he was carried out by the struggle between justice and evil, whether they are passive or proactive defense is understandable. The defense, who is against the unlawful infringement of the initiator, although he later become a new victim, but he is not the fault of the original thus excluded. As the initiator of the process, he should have anticipated the victim's resistance, the general will want a good escape route for himself and the way to avoid being hurt, and the original perpetrator of the unlawful should be prepared. Because of this, when the victim or a third person defense, if defense improperly formed, the original perpetrator of the unlawful (new victims) should be in line with the obligation to retreat to avoid as much as possible, not like ordinary people do the defense of self-defense give up the dodge chance to violence with violence, otherwise it is difficult to explain the initiative to actively fight back the true intent of its defense against the legitimate purpose will be in doubt. Therefore, only in case there is no other way to be carried out against the defense. This view has been generally accepted in many Western countries.Should set strict limits against the defense request, must be a last resort defense against the implementation of circumstances. Otherwise, it cannot explain the true intentions of the existence of an active, positive fight back the possibility of the legitimacy of its counter defense purposes will also be questioned. Therefore, only if there is no other way to be implemented against the defense.The author believes that self-defense against the defense does not violate the legislative intent and values, but on the other hand in the defense system to be improved. Self-defense counters defense to both positive and negative confirmation from the realization of self-defense system. So it should be set up against the defense in criminal law terms, as self-defense system, subsystem, to make up for deficiencies in our defense requirements.
Keywords/Search Tags:Reverse Defense, Defender, Unlawful Offender, Improper Defense
PDF Full Text Request
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