Special Defense System Research

Our country in 1997 the criminal law has made the quite big revision to justifiable defense's stipulation, what is most noticeable additionally built the 3rd section, this article of stipulation: "to is carrying on commits murder, the murder, to rob, to rape, kidnapping as well as other endangers the personal safety seriously the petty crime, adopts the defense behavior, causes the unlawful attack person casualties, does not belong has defended works as, does not lose the legal responsibility." It the name includes on the learning: The infinite defense power, the non-limit defense power, has not had, when the defense power, the preventive justifiable defense power, the special defense power, defend the power specially, and so on. The author believed that this article of stipulation is called "the special defense system" to be more reasonable. Then may see from the like this many names, this article of stipulation has caused the academic circle and the community widespread and the lasting argument.In fact, from 1997 to today, the academic circle has the quite intense argument regarding our country criminal law in justifiable defense system, argued the subject matter included: Justifiable defense constitution important document questions, justifiable defense limit question, special defense rational question, special defense some concrete question understanding, and so on. Argument's focal point is the special defense system saves the waste question. The author believed that in 1997 the criminal law additionally built "the special defense system" is the historical progress, was our country criminal law legislation technology better and better performance, was our country legal system toward civilising, the modernized direction advance choice inevitably. The reason that the academic circle saves to this system has the so great dispute waste, is because the different person has the difference to this system's understanding. This kind of difference possibly is the law itself stipulates causes insufficiently explicitly, also possibly is each person's subjectivity causes. The author has proven in our country criminal law special defense system's rationality from the following several parts.The first part, first introduced about "special defense system" the name question, pointed out this article of stipulation must be called "the special defense system", but cannot be called "the infinite defense power" or "the non-limit defense power", because in our country criminal law's special defense has the limit, it belongs to a justifiable defense system's part, takes one right to be called "the justifiable defense power". Makes clear the name question is further discusses its existence the rational premise. The author believed that only then, when defends specially has in the limit situation, is reasonable. Because does not have the limit limit justifiable defense and any condition limit justifiable defense has not been the similar danger, the right itself must have the limit, the limit regarding the justifiable defense power, is a very important limiting condition. In order to explain in our country criminal law the special defense system to have the limit, the author has proven the following several aspects: (1),the infinite defense's concept, and showed the infinite defense with the non-limit defense's difference, pointed out the non-limit defense belongs to the limited defense category; (2) the infinite defense is the humanity is in the uncivilized time the product, now already withdrew from the historical arena, at present various countries' legislation is right "the non-limit defense" the limit is also getting more and more strict; (3),our country special defense system is different with other national non-limit defense stipulation, our country special defense has the limit; (4) from the semantics explained what our country in 1997 the criminal law 20th stipulation is a system, they are the justifiable defense system's contents, the 3rd article of stipulation is with showed alone to some serious petty crime situation enumeration, explained facing endangers the personal safety seriously in the petty crime situation, takes the justifiable defense measure to send the person casualties is, so long as tomorrow which is permitted by the law does not surpass the essential limit to create the significant harm, does not belong has defended works as, does not lose the legal responsibility.The second part, introduced in 1997 the criminal law made the revision to the justifiable defense the legislative background, as well as why could the legislator additionally build the special defense system. The author attempts with the aid of this part of introductions to explain two questions: (1) the special defense's addition stems from the reality need. Any law was decided by the society physical conditions then. Our country in 1997 in the criminal law special defense system was also same. The criminal law stipulation's justifiable defense existence "the stipulation was not explicit" as a result of 1979 flaws and so on , in the judicial practice grasps to the justifiable defense standard strictly, attacked the people to exercise the justifiable defense right self-defense enthusiasm, did not favor with the illegal crime wages the struggle. Justifiable defense's legislative value has not obtained realizes well. (2),our country special defense's production has certain historical perspective, this explained that the legislator is merely the hope gets rid of the difficult position through this article of stipulation, encourages the people to exercise the justifiable defense power, provides a quite explicit standard to the judicature, but is not to create one not to have the limit limit right for no reasonThe third part, elaborated the special defense constitution important document. The author attempts in this part to explain the following question: (l),the special defense belongs to a justifiable defense part, must meet justifiable defense all conditions, specially with emphasis explained the special defense boundary condition; (2) the special defense and the general justifiable defense's difference is the cause, the object, the limit and so on, but does not have the substantive difference, is only the degree and the scope difference, but condition of existence whether there is difference. The special defense and the general justifiable defense follow a principle in the defense limit, the legal rule are "do not surpass the essential limit to create the serious damage obviously", theoretically is called "the equivalence principle".The fourth part, elaborated to the special defense some concrete question understanding. Is mainly to recognize the special defense explicitly some standards. Because, recognized that the standard also relates this system's rationality, if some concept explanation is too broad, possibly will violate legislative the original intention, will thus weaken this system existence the reasonable basis; If some concepts explain too narrowly, does not favor plays its role, also will affect the necessity which will exist to it.The fifth part, elaborated the special defense existence rationality. First, the author introduced the justifiable defense existence's basis, included the history to act according to, the value to act according to, the legal attribute. Next, the author introduced the Western initiation thinker about the infinite defense power viewpoint, because the author thought that the initiation thinker's thought has the very vital role in the history, has the quite strong persuasive power. But the author believed that in our country criminal law's special defense system is precisely to the infinite defense thought one kind of breakthrough, can exist reasonably under the present era condition. Finally, the author introduced our country criminal law educational world to the special defense's argument, and has expounded author own viewpoint.Finally, the author draws the conclusion: Our country in 1997 the criminal law additionally built the special defense system is the historical progress, its value was worth affirming. But, because it stipulates quite broadly, many places need to further explain, by unified standards.