Constitutive Elements Of Justifiable Defense And The System Perfect

Justifiable defense system has always been the focus and hot spot in the world criminal legislation, criminal justice and criminal law theory. And justifiable defense system is also an important system of criminal law in our country, whose establishment in the criminal law is the classical deductive logic of the natural law "justice shall not bend to injustice" in the criminal field.For many years, the debate around the "justifiable defense" has never stopped, and the confusion of judicial practice has also never gone, and there have been lots of difficulties and disputes in the use of justifiable defense, and there have also existed many differences over operation technology and value judgment to set up the elements of justifiable defense. To distinguish the pales of crime and non-crime, and of legal behavior and illegal behavior, it is significant to correctly understand and grasp the elements of justifiable defense, and to carefully identify the mutated forms of justifiable defense. Based on the introduction and analysis of all kinds of points of view in academia and judiciary, from the historical evolution of justifiable defense, this thesis focuses on the re-inspection of the five important elements of justifiable defense, and puts forward the re-inspection of constructing inverse defense systems with regard to the existing shortcomings in the legislation of justifiable defense. The research aims to ensure the unification of the criminal law theory and judicial practice, to promote the correct understanding and the proper application of justifiable defense in theory circles and judicial practice, to achieve the legal value of justifiable defense, and to fully embody the positive and progressive legislative spirits of the justifiable defense.This thesis is divided into three parts:Chapter One The historical evolution and the legislative orientation of justifiable defense. The ancient study of justifiable defense, the modern western study of justifiable defense, and the modern Chinese study of justifiable defense are mainly expounded.Chapter Two The understanding of the elements of justifiable defense. The main re-inspection of the elements of justifiable defense includes five aspects: illegal violation (cause), ongoing unlawful infringement (time), illegal violator (object), defense intent (subject), serious damage caused without obviously surpassing necessary limit (limit); and the mutated forms of justifiable defense are identified and studied.Chapter Three The thinking of constructing the inverse defense systems. Five aspects of the inverse defense are mainly expounded:empirical basis-the complex character of harm and murdered, the concept basis-the guarantee of human rights of criminals, the necessity of constructing inverse defense systems, the theoretical framework of inverse defense systems, and the basis of the inverse defense systems-the transformation of legislative and judicial ideas.