Study. Self-defense Problems

This dissertation has four parts. Several knotty problems concerning legitimate defense system in criminal law of the PCR are discussed here. The aim is to make some contributions, if any, to legitimate defense system both theoretically and practically.Part One--- Introduction. This part illustrates the history evolution of legitimate defense, relevant rules and regulations and its present judicial situation.Part Two--- Unlawful Infringements in Legitimate Defense. This part expounds the following points: The determination, the degree limits and the time ranges of unlawful infringement; whether the form of omission is included in unlawful infringement; whether the form of culpability includes negligent violence. Legitimate defense is out of the scope when the infringer is incapacity for criminal responsibility. In terms of the principle of "subject is inconformity with object". To avoid the appearance of new chaos in legitimate defense system, excessive defense allows no retroactive defense. Omission under the condition of imminent pressing should be regarded as unlawful infringement, which is a standard to determine whether an action of unlawful infringement of negligent violence belongs to legitimate defense. The action of self-defense is out of the scope of legitimate defense, which can be legislated separately as legitimate action.Part three---Excessive Defense. This part discusses the following points: The relationship between excessive defense and legitimate defense; the determination of necessary limit; the form of culpability in excessive defense; the determination and treatment of excessive defense. Excessive defense and legitimate defense are two expressive forms that contradict each other on the basis of defense action. Unlawful infringements are graded in terms of different levels to see if they go beyond necessary limit. In the criminal law of the PCR, there is a newly added rule called "obvious excess", so the form of culpability of excessive defense could only be indirect intention. When determining and dealing with excessive defense, the main attributions of burden of introducing evidence should be clear. The differentiation of self-defense and defense of another should be done when one is penalized.Part four--- Unlimited Justifiable Defense, The following points are discussed in this part: The concept and comprehension of article 20 section 3 in the criminal law of the PCR; the subject of unlimited justifiable defense; evaluation and analysis on the legislation of unlimited justifiable defense. The concept of unlimited justifiable defense accords well with the demand of the title of article 20 section 3 in the criminal law, because it reflects accurately the intension and the extension of article 20 section 3. The subject of unlimited justifiable defense should not only be the infringed, but all citizens. This part also puts forward a few slips in the legislation and corresponding measures of perfecting it.