On The Defensive,

Self-defense is the national criminal legislation on the individual citizens under the private relief an important right for the protection of individuals, groups, the legitimate interests of countries will play a positive role. But since it is the right of individual citizens, will inevitably result of the inclusion of personal feelings, such as color and improperly used, therefore, all countries in the world provides the system of self-defense, self-defense require a more stringent conditions. How to correctly grasp the limits of self-defense conditions, the distinction between self-defense and over-defense, which is the judicial practice of an important issue. China's current Criminal Code on the over-defense made major changes in how the judicial practice in the correct judgment over-defense, and caused concern among the people. In this paper, have gone too far in prevention of the start of the over-defense Analysis of the concept of nature and manifestations, has gone too far in prevention focused on the main objective constitutes, in the administration of justice in order to adhere to the correct practice of over-defense, correctly distinguish crimes and the limits of non-crime so that the masses of the people correctly, and actively exercised defense rightThe full text is divided into five parts:First. The formation of the concept of over-defenseDefense Right from the selection of over-defense is restricted. According to the first part of history and the method of combining logic, inspected the defense right in the world in the development of the Penal Code evolutionary process, and thus reveals the evolution of defense right, that is, countries in the defense right on the issue have experienced from the instinct to act not restricted by the restrictions too strict restrictions than to the process of evolution. Through the over-defense and to further the concept of analyzing the over-defense clear the concept of "significantly more than necessary to limit illegal infringes on the people to cause significant damage to the defense of criminal responsibility for acts."Second. Over-defense nature, characteristics and manifestations That part of the Chinese Criminal Law adopted in the over-defense theory and the essential characteristics of the several main viewpoints of the comparative analysis, pointed out that over-defense on the one hand with defense; on the other hand, is harmful to society and subjective sexual sin. Turn on the over-defense and evaluation forms theoretical viewpoints, and clearly the defense is over-defense and defense of the results of reunification, and does not exist when the act and the result of excessive hours.Third. The establishment of conditions for over-defenseThe first part of that over-defense is a prerequisite for ongoing defense, and clearly define the scope of the over-defense only "those criminals, and the urgency of defensive means can be used to avoid or mitigate harm the outcome of the criminal law against." Against illegal by the analysis pointed out that both as a criminal against crime, but also does not have the urgency of a crime. Further from the meaning of the necessary limits, the limits of the existing Penal Code, as well as the conditions of the judicial practice of over-defense How to identify three areas of the limits of over-defense conditions. Through the introduction and evaluation of the domestic and international legislation and the Criminal Code doctrine, said that under China's current criminal law, and understanding "necessary limits" should have an "appropriate", and on "necessity and considerable" should be the criteria for judging bias in the "compromise", we should focus on implementation of the defense inspected the objective conditions, as well as the illegal defense against the situation. Finally gone too far in prevention of the subjective element, through the various viewpoints Analysis, pointed out that the over-defense subjective sin can be expressed as fault, performance can be indirect intentional, it is impossible for the performance of direct deliberately.Fourth. Over-defense and self-defenseThat part of the legitimate defense and over-defense relations and differences, through the various viewpoints Analysis, pointed out that over-defense and self-defense of a different nature, the two are antagonistic, but also integrated in both the scope of defense among.Fifth. Gone too far in prevention of the conviction and sentence On the part of domestic and international criminal law gone too far in prevention of penalties, punishment of the over-defense and in mitigation, pointed out that China's over-defense to reduce or waive the penalty is based on the nature of the defense, defense and the objective situation in the Criminal Code The purpose of consideration. And further analysis of the over-defense conviction and sentencing should grasp the elements.