Research On Some Problems Of Special Defense In China

Since the special defense clause promulgated, has caused extensive discussion inacademic circles. To clarify the train of thought and the logic, this article mainly startswith the following problems, to studying on special defense.In the first part, all discussions are around the problem of the establishingconditions of special defense. This part mainly aimed at the express provisions of theterms and conditions set out in our country, and make the following understanding.“On the attack” should be understood as the ongoing violence, subjective aspect andthe form of violence uncertain, seriously endanger the personal safety of crime;"murder, robbery, rape, kidnap" refers to the four concrete crimes, and the four crimesmust be the implementation of the crime by means of violence, and violence seriouslyendanger the personal safety;“seriously endanger personal safety” in “seriouslyendangered” should be understood as a serious infringement and urgency,"personalsecurity" should be understood as the right to life, the right to health and sexualfreedom;"violence" and "the level of it” must be restricted to personal safety urgentand strong with a serious violation of the crime;"others" should be understood as inaddition to "murder, robbery, rape, kidnap" the four charges to the four forms of crimemeans the implementation of a serious endanger the personal safety of crime;"starting time" should be recognized as when violence behavior begins, in someviolence behavior had not yet started but there are serious violations and strongurgency, should also be implemented to allow the defense behavior;“over time”should be considered get rid of the dangerous state.In the second part, all discussions are about the analysis of the problem ofjudicial application of the special defense. This part mainly aims at the judicialpractice for special defense and the existence of the judicial application of deviationin our country. Take the opinions that the different title of the special defense in thejudicial practice makes it inconsistency and there is a problem that determining acase on whether the consequences happened; in the melee in the case, if one side ofthe attack was upgraded, the other party can also utilize the special defense right according to the situation; to prevent abuse of the special defense it is necessary tomake the person who conduct it to bear the burden of proof; the inverse defenseproblems should be affirmed, but the solution of it should be in accordance with theprovisions of general justifiable defense.In the third part, all discussions are aiming at the perfection of special defense inour country. This part focuses on the solving problem of the establishing conditions ofspecial defense and the judicial application, and suggesting some improving advises.We should regulate the terms in the legislation, and express the scope subject tospecial defense; giving it a qualitative in judicature, and take the neutral position; weshould reverse the burden of proof and introduce the principle of withdrawal in itssystem construction.