Gone Too Far The Theory

Excessive defense, as an indispensable topic in the system ofjustifiable defense, has always been paid close attention to and beenemphasized in the realm of theory and practice. Specially, theinterpretation of limited condition is the key difference betweenjustifiable and excessive defense. The exact definition of the excessivedefense could help the courts distinguish a crime from not-a-crime, onekind of crime from other crimes. Criminal Law of the People's Republicof China (hereinafter referred to as CL) of 1997 expanded the sphere ofusage of justifiable defense. Many defensive persons in these cases,which were given an excessive defense sentence according to CL of1979, were given a justifiable defense sentence by CL of 1997. So it isnecessary to study excessive defense deeply.This paper consists of four parts.The first part will discuss the concept, characters and essence ofexcessive defense. It says that excessive defense is different fromaccident through the concept of excessive of defense. And excessivedefense and justifiable defense is either one result of action of defense.The excessive defense doesn't transform from the justifiable defense.The word "defense" of excessive defense should be interpreted theaction of defense but justifiable defense. The excessive defense is anaction of defense which cause great damage exceeds obvious necessarylimitation within which the person could protect himself from being hurt;but the person perform the action of defense should take criminalresponsibility. Defense and excess are two major characters of excessivedefense. The essence of excessive is its harm to society.The second part will say the criminal structure of excessive defense.The object of excessive defense is the specific object of a crime, that isthe personal and property right, specially the personal right of theillegal injuring part. The objective aspects of excessive defense are thatthe action of defense exceeds obvious necessary limitation and cause great damage, which is the key point of this paper. It is critical forunderstanding the conditions of defense least to judge the "necessity"and "fair" through the analysis of conditions at home and abroad ondefense least. In China, the judgment of necessary limitation shouldbase on the necessity and end with fair. It uses the theory of subjectiveand objective to judge defense least; and run the unity of subjective andobjective through the whole process of judgment with the necessity andfair.The principle of unity of subjective and objective needs: (1) itshould be deem defense within minimum degree defending with tools athand, when the defensive person faces the urgent illegal injury and hasnot chance to choice the method of defense and control the intensity ofdefense. In this situation, this kind of defense should be recognized as"necessary";(2)when the defensive person has opportunity to choosemeans of defense and control the intensity of defense, the action ofdefense, he believes reasonably, by which the illegal injury can beprohibited efficiently, should be recognized at a minimum, if thedefense could be accepted by the common. Judging whether the defenseis controlled at a minimum can't be isolated from all kinds of objectivefactors and intimately linked with the subjective thoughts. The judgmentof fair should follow the principle of unity of subjective and objective asthe judgment of necessity, that is, not only should weigh two kinds ofconflicting interest but also analyze attention paid to the interestprotected. The more attention the defensive person pays to interestprotected and more intensely he defends, the more serious the damageto the illegal injuring person is; vice versa. The influence which theattention of defensive person paid to interest injured has on thejudgment of fair should depend on specific facts. The judge should makea fair judgment through weighing the conflicting interests withconscience and the common ideas in the defensive person's shoes.Besides, we should distinguish "obviously know" from "knowperfectly well",the value embodied in "obviously know ",the criterion of judgment of "obviously know" when we interpret "obviouslyknow". "Great damage" implies negative, condemnable judgment ofpolitical morality for the result because of defensive person's exceedingthe necessary limits. Great damage should base on the serious injury orgreat property loss. We could analyze the relationship of "obviouslyexceed necessary limitation" and "great damage" with differentviewpoints. For example, in the viewpoint of general order, the bothare parallel relationship. If there is not great damage, the judgment ofnecessary limitation doesn't exist. Even if great damage happened to theillegal injuring person, whether defensive person should take criminalresponsibility depends on the intensity of defense. In the viewpoint ofreverse order as to general order, the action of defense exceeds thenecessity could cause great damage, including slight damage. So theaction of defense exceeding the necessity obviously doesn't result ingreat damage inevitably. Based on the viewpoint of conclusion,excessive defense is a unity consisting of "exceeding necessary limitsobviously" and "causing great damage". The criminal subjective ofexcessive defense is natural body which has legal capacity to takecriminal responsibility. The forms of excessive defense are as follows:indirect intent,negligence being obstinately self-confident,negligenceinattentive and heedless.The topic of the third part is the criminal responsibility of excessivedefense. The excessive defense always violate these crimes, such asintentional homicide, intentional injury, negligence causing persondeath, negligence causing person serious injury, intentionaldestroying properties. Defensive person should be mitigated criminalresponsibility, depending on that slight subjective malice intention ofexcessive defensive person; the reducing of capacity of differentiatingand controlling; the responsibility of illegal injuring person for theresult.The forth part mainly approaches the relationship between Article20, Clause 3 and Clause 2 and probes the value of legislative intention of Article 20, Clause 3of CL; then proposes some suggestion. Finallydepending on the research of excessive defense, some suggestions areput forward to perfect the system of excessive defense. The suggestionsare as follows:Amending the Article 20 of CL:In order to protect the interest of nation and public, the personalright, the property right and other rights of himself or other people frombeing illegal injured. The defensive person does not take criminalresponsibility when he takes measures to prohibit the illegal injury andcauses the injuring person injured.When the defensive person confronts ongoing intentional injure,homicide,robbery,kidnapping which could cause the victims seriouslydamaged and other serious violent crimes which threaten life, healthysafety of body, he defended and caused the illegal injuring person deador injured, which belongs to justifiable defense. The defensive persondoes not take criminal responsibility.Meanwhile, Article 20, Clause 2 separated to Article 21 andamending it:The action of defense, exceeding necessary limit which causesgreat damage to the illegal injuring person must take criminalresponsibility. But the criminal penalty must be mitigated or exempted.