Study On Establishment Condition Of Justifiable Defense

Justifiable defense provision in the Article20of China’s “Criminal Law” hasdivided into three paragraphs, namely justifiable defense, excessive defense andnon-excessive defense. Justifiable defense system has an important role in curbingcrime, protecting the safety of people’s lives and property, and safeguarding thelegitimate rights and interests of defenders. In judicial practice, there are manyquestions and differences on the identification problems of justifiable defense,excessive defense, and intentional crime in some cases due to the differentcharacteristics of different cases. Studying the establishment condition of justifiabledefense has a positive theoretical significance to the proper use of justifiable defensein judicial practice.Justifiable defense has five establishment conditions, namely precondition,opportunity condition, subjective condition (defensive awareness), object condition,and limit conditions.The precondition of justifiable defense is unlawful infringement which is reallyoccurring. Usually, the unlawful infringement under extremely urgent situation canconstitute the precondition of justifiable defense. There is a considerable controversythat whether the infringement from illegal public power can be implementedjustifiable defense. This paper analyzed the categorization of illegal administrativeacts which can become the precondition of justifiable defense by analyzing thespecific cases. And the author suggested that defender can take prolonged passivedefensive measures to safeguard their legitimate rights and interests when theadministrative act is obviously wrong. In reality, for the imaginary defense, onlyreasonable hypothesis can be the hypothesis of the imaginary defense.The opportunity condition is the time when defenders are taking defensiveactions between the beginning of unlawful infringement and the end of unlawfulinfringement. In the initial stage of time of defense, defenders prepare defense tool inadvance when they probably have a premonition that there will be possible danger,which won’t affect the establishment of justifiable defense. In the termination stage of time of defense, especially after the accomplished offense of property crime, if thereis space for establishing justifiable defense, the beginning time of justifiable defenseshould be identified as earlier than the beginning of initiating a crime and as later thanthe accomplished offense of the crime. After the accomplished offense of propertycrime, if the case meets conditions such as in the same scene and hotly pursuit, it alsocan take measures to implement justifiable defense.The subjective condition of justifiable defense means the defender hascongnition of defense during the defense. Whether there is congnition of defense hasa significant impact on establishing justifiable defense or. By analyzing simplecongnition of defense, complex congnition of defense and lacking congnition ofdefense, the conclusion showed that the congnition of defense should be identified asthe defender recognizes the legal interest is faced imminent danger of abuse whichshould be taken defensive behavior to preserve. As long as the results achieve theeffect of defense, intentionally or unintentionally defensive measures can indicate thatthe defender has the congnition of defense. Meanwhile, the transformation fromharming to the congnition of defense also belongs to the congnition of defense.The object condition of justifiable defense means the defender must implementdefense against to the implementation of the illegal violation, but not to others,otherwise it may set up an emergency hedge. Defense against the implementation ofthe illegal violation mainly includes two ways. One is the defense which is against theperson of the implementation of the illegal violation, which may result in the damageof the personal freedom, health and even life of the implementation of the illegalviolation. Meanwhile, in joint offence, if the implementation of the illegal violationhas two or more people and they are in the relationship of the joint principal offender,justifiable defense can be implemented against any of them. The other one is thedefense which is against the property of the implementation of the illegal violation. Ifthe implementation of the illegal violation uses the property as criminal tools andconditions, defenders can destruct the property to achieve the purpose of eliminatingillegal violation and protecting legal interest.The limit condition of justifiable defense means the defensive behavior doesn’texceed the limits of necessity apparently but causes serious harm. Limit conditions directly affect the defender to establish justifiable defense or excessive defense.Damage of property should always be immaterial damage, while personal injuryshould be identified by combining with the specific circumstances. Minor injuriesshouldn’t belong to material damage, and the result of serious injury and death shoulddepend on the circumstance, carefully identified as material damage. In thenon-excessive defense, the occurrence of any consequence isn’t material damage. Inthe cases which has unclear facts and is lacking of evidence, the principle ofbenefiting the defendant (defender) should be taken, considering justifiable defense asmuch as possible.Hoping discusses of this paper can have a positive significance in understandingand using justifiable defense in the judicial practice.