On The Legislative Value And Limitation Of Special Defense Right Under Chinese Criminal Law

As we know, punishment is a kind of relief to crime that happens when crime is already implemented, and it solves the problems such as who should bear the criminal liability caused by a crime and what kind of punishment the criminal should bear. It’s an operation process of country’s criminal law, which will take some time. However, the infringement suffered by the victim has already come into being and can not be eliminated. It’s reasonable that the best relief to a victim is to stop the crime from happening. A timely defense will prevent a crime and reduce the harm at the same time. Therefore, the defense right is given to citizens by the criminal law, which exempts a person from the liability of harm results caused by defensive behavior.In order to regulate the exercise of defense right and avoid the abuse, the criminal law clearly defines time condition, cause, object and limit of justifiable defense behavior. Article20of Criminal Law of the People’s Republic of China stipulates that,"Criminal responsibility is not to be borne for an act of legitimate defense that is undertaken to stop present unlawful infringement of the state’s and public interest or the rights of the person, property or other rights of the actor or of other people and that causes harm to the unlawful infringer.""Criminal responsibility shall be borne where legitimate defense noticeably exceeds the necessary limits and causes great harm. However, consideration shall be given to imposing a mitigated punishment or to granting exemption from punishment.""Criminal responsibility is not to be borne for a defensive act undertaken against ongoing physical assault, murder, robbery, rape, kidnap, and other violent crimes that seriously endanger personal safety that causes injury or death to the unlawful infringer since such an act is not an excessive defense."Special defense is a kind of lawful defense which is undertaken against ongoing physical assault, murder, robbery, rape, kidnap, and other violent crimes that seriously endanger personal safety and may cause injury or death to the unlawful infringer. The subject of special defense can be someone who takes action to defend himself or other people. As a result, the action of doing boldly what is righteous is approved of by the criminal law, and the pressure of the law enforcement agencies to maintain social order is shared by citizens who carry out their duty to defense ongoing physical violent crimes.Special defense is applicable to defensive actions against assault, murder, robbery, rape, kidnap, and other violent crimes that seriously endanger personal safety, which is not restricted by the means of criminal behavior or the type of charge. Whether the level of violence in the crime is up to a degree that personal safety is seriously endangered should not be judged by the charges but by the actual situation in an individual case.Special defense is a powerful supplement to the defense system in criminal law, which moderates the control to personal legal violence under national public power, and promotes the protection of citizen’s human rights.The legislation of the continental law system on special defense assumes two main forms. One is to define the main types of offence and crimes, against which special defense can be carried out and shall not be guilty, such as residential intrusive behavior, violent theft and robbery. The other one is to grant exemption for excessive defense from punishment because of a kind of special mentality, such as nervousness, excitement,anger and other strong emotions. This kind of legislation embodies a high degree of protection for citizens’ personal rights and property rights, affected by the political philosophy of limited public power, and statutory forgiveness for defenders who are not able to carry out legal action in some special environment, based on the normative responsibility theory under criminal law.The forming conditions of special defense in Chinese Criminal Law are limited by legitimate defense. As a result, there is no essential difference between the substance of special defense and legitimate defense. Compared to the special defense defined by the criminal law of the continental law, Chinese special defense should enrich its contents and break through the original limit on the basis of empirical study.