On Special Defense

This paper studies all-sidedly the special justifiable defense system prescribed in Article 20, Section 3 in New Criminal Law. It is divided into three parts.Part 1: a general discussion on right of special defense . This part mainly expounds three questions. The first question discussed is the nomination of right of special defense. It discusses the six kinds of nominations for Article 20, Section 3 in accademic circles, negates other incorrect nominations, expounds the scientificalness and rationality of the nomination of right of special defense and establishes the nomination of'special justifiable defense".The second question discussed is the characteristics of special defense . Its characteristics are as follows: firstly, it emphasizes the qualifications of limits in the respect of the limits of defense; secondly, it stresses the person of personal right in the respect of the object of protection; thirdly, it emphasizes the violent offense of self -defense in the respect of tort in self-defense; fourthly, it stresses the indefiniteness of defense of the self-defender in the respect of the limit of self-defense; fifthly, it emphasizes the strictness of subjective intent in the respect of subjective conditions. The third question discussed is the legislative values of right of special defense, which are as follows: firstly, it is beneficial to the effective protection of human rights; secondly, it helps to embody the value of justice of Criminal Law; thirdly, it is beneficial to a more effective control of crimes; fourthly, it helps to guarantee the all-sided development of economic construction and social progress.Part 2:conditions for the application of right of special defense. This part mainly discusses three principal conditions. The first is the basic condition for exercising right of special defense The existence of specific violent crime injury. It makes an analysis of "physical assault, murder, robbery, rape and kidnap"and discusses the concept of Violent crime"and the three important conditions for violent crime which is considered to be the basic condition for special justifiabledefense. The second one is the time condition for right of special defensepecific violent crime' s being committed. It mainly discusses how to determine the"beginning"and"ending"time of specifc violent crime. The third one is the subjective condition for right of special defense-the real existence of special defense intent. It mainly discusses the cognition factor and will factor and emphasizes a correct understanding of "violent infringer".Part 3 suggestions on the legislative perfection of right of special defense . Based on a deep analysis and understanding of the specific provisions in present Criminal Law, this part puts forward suggestions on the understanding and amendment of'physical assault"; it puts forward suggestions on the understanding and amendment of "murder , robbery , rape and kidnap"; it puts forward suggestions on the understanding and amendment of "other violent crimes that seriously jeopardize personal safty; it puts forward suggestions on the amendment of the whole of Article 20, Section 3 in Criminal Law.