On The Limits Of Legitimate Defense Defense

Self-defence in the criminal law is a very important system. Self-defence is powerful weapon that the citizen defend others and protect the interests of national and public, as well as others' legitimate rights and interests. From the natural quality, self-defence is a method to counter the illegal infringement and thus relieve the interests. The limit of the self-defence is decided by its' natural quality. However, in our judicial practice, there are still some contentious issues concerning the limits of self-defence that affected the effectiveness of the self-defence largely.Before the promulgation of the criminal law in 1997, in judicial practice, a considerable number of cases about the limits of self-defence which should be dealt as legal self-defence, had been mastered strictly. As a result seriously hurt the citizens' enthusiasm of protecting, theirs' legitimate rights and interests of national and public. Compared with the the criminal law in 1979 ,the criminal law in 1997 had been changed "can't exceed the necessary limit" and "unnecessary harm" to "can't obviously exceed the necessary limit " and the"significant harm".The purpose of the changement is to relax the limit of the defence. Thus many cases in the criminal law in 1979 can not be identified as acts of he self-defence in accordance with the criminal law in 1997 can be . In such circumstances the limits of self-defence theory can not be properly understand the self-defence purposes and limit legislative in the criminal law in 1997.In order to accurately grasp the limits of self-defence in the 1997 criminal law, the article is divided into four parts:The first part, is the historical evolution conditions of the defense limit.In this part we can see that the self-defence system from its infancy,happen and development, has gone through a tortuous process by inspecting the history of foreign country and ours. In the course of its development, we can feel that "the baptism of blood and fire, the struggle of soul and flesh," and "It is just the justice that force people to take up defensive weapons to defend their rights. It is just the power of rational that force people to formulate various restrictive conditions against illegal violations. It is just the power of evil that force people to reflect on the defence after relax the limit of defense."The second part is the basis of limiting the right to self-defence.The self-defence is the weapon to fight against illegal conduct, which is a necessary complement of the state penalty .However it should have restrictions to limit it in the necessary defense. Otherwise, it will change to a tool that endanger social alienation. The reasons of self-defence there is a limit, I believe that is mainly based on the following considerations: the relationship between the rights and obligations; the limit of penalty; the essence of self-defence; the value of justice, order, freedom; the achievement of the function of criminal law. It is useful for us to grasp the limit of self-defence when we these reasons.The third part is the criminal law the limits on the doctrine of self-defence of China and foreign courtry.This part is the core of the article. By comparing the self-defence theory of China and foreign country ,the author elaborate how to limit the defense in our country.The limit of self-defence of civil law countries and common law countries is different, civil law countries on the limits of self-defence existing three main theories: First, the balance benefits theory said to be against the law and the interests of defense hurt by the behavior of benefits, and the value of striking a balance between maintaining the standards. The second is that self-defence must be the only way in order to avoid illegal conduct. The third is that it is necessary that there should be objectively necessary, as a measure of whether the defense when standards. In common law countries, in accordance with its legal system often protected by the defense of the right of self-defence to the different interests of conduct classification, the different requirements of different types of defense limits conditions.Criminal Law in China in 1979, in judicial practice, it often have more than the necessary limits of self-defence and it is difficult for the perpetrator's conduct qualitative puzzled. The limit of self-defence by the analysis of the theory, the author of self-defence will be necessary to limit defined as: "The unlawful infringement caused by damage to the defense effective enough to stop illegal infringement necessary, and are not obvious undue major damage." At the same time, I believe that "significant harm" includes not only the major physical damage, but also the major property damage. In judicial practice, how to judge the defense of the limit of self-defence, should consider the following major factors: the strength of unlawful infringement,the priorities, the interests of unscrupulous. And try to introduce the theory of the possibility of look forward to and the principle of proportionality. The possibility of looking forward to can remind us to concern about judicial behavior effects or Defense limit is a judicial process, by borrowing abroad the essence of the principle of proportionality ,we can grasp the limits of defense better.The fourth part is the analysis of the limit of the special defense.The article 20, paragraph 3 in our criminal law provides that: "the attacking, murdering, robbing, raping, kidnapping and other serious violent crimes, to take defensive actions, causing casualties against the lawless, are not over-defence. How to understand and use this provision ? Inpecting the name of the controversy of 1997 criminal law ,the author point out that the thie paragraph should be called "special defense right". It has not grant the citizens unlimited defense right, the right still constrained by the limits of self-defence. At the same time, pointing out the issues that we should pay attention to in the application of the provisions.