Several Issues On The Special Defense System

It is ruled in the Criminal Law of 1997 that if a person acts in defense against an on-going assault, murder, rape, kidnap or any other crime of violence that seriously endangers his personal safety, thus causing injury or death to the perpetrator of the unlawful act, it is not undue defense, and he shall not bear criminal responsibility. This is the special defense system. As a new provision of justifiable defense in the Criminal Law of 1997, special defense system has been praising or criticizing from it was established. Someone consider it is a great creation and in favor of struggling against infraction and crime. So it should be canonized greatly. In the same time, someone think it should be recalled for it has encouraged the abuse of justifiable defense right and it has perversion in criminal's value. This original is have a foothold somewhere to fundamental theory and criminal legislate of criminal law together with judicature practice and has a relatively penetrate into the advantage, disadvantage, essence and so on of the special defense system in hope of perfecting the special defense system.This text is divided into five parts totally, roughly 35,000 words.Part I ,the evolution of justifiable defense. In this part, we find the mostly regulation of the evolution of justifiable defense through balance the rules of antiquity, modernity, china and other countries. The rule is that the better the society's culture, the maturer the law system. The spirit of law is accepted by mass more, the extent of defense right is smaller.Part II ,different viewpoints of special defense system in theory republic. In this part, the opinions and reasons of scholars who deny special defense system will be introduced.Part III,the essence of special defense right. In this part, we question the relationship and difference between special defense right and infinite defense right firstly. Then we question the station ofspecial defense right in justifiable defense system and denote the function of special defense rule is only emphasizing and guiding, it is subordination of justifiable defense rule. The relation between special defense rule and infinite defense rule is particularity and general, but not opposition.Part IV,the opinion to the viewpoint that deny special defense system. In this part, we will prove it is needful to establish the special defense system from several behalves.Part V,the defects and perfecting methods of special defense system. Although it is needful to establish the special defense system, it has it's defects and need be perfected. The vice mainly exhibit in three phases: the first one is the expression is not normative, the logic is not rational completely. The second one is lack of the prove responsibility of privy. The third one is lack of corresponding rule to the people who has no ability to take on criminal responsibility.We should modify these defects in legislation to coordinate the criminal function of protection and indemnification and realize fairness and mileage.