Research On Particular Provision Of Self-defense

After Chinese Criminal Code (1997) promulgated, the sound of criticism about the third provision of article20is continuing for years, therefore, whichever became the focus of controversy. Around its name, academia appeared different opinions. From "the unlimited right of defense" to "the boundless right of defense", and then to "the special right of defense", which is mainstream of academia, the evolution implies diverse position of Penal Code. How time flies, this clause has been revised for15years. Whether or not the value of provision has its existence and necessity, the thesis will discuss from academic controversy.I write it from the start of philosophy, don’t adhere to the common name dispute and the flaws of legal rules, but display gradually the phenomenon behind the law by the review thinking. Four parts of this thesis as follows, the first part, I mainly introduces the special provision of self-defense at home and abroad through the ages, clarify the historical context of the legal evolution, seize the article in kernel of legal principle of historical interpretation,, and then deduce that special provision is contained in the justifiable system; the second part, I analysis the third provision of article20, largely from the legislation background(the legislative background, legislative reasons and legislative effect), and the logical relation with other two provisions and the angle of name dispute(the structure division of special defense and unlimited defense, the different nature of special defense and non-excessive defense, the diverse shape of unlimited defense and non-excessive defense), reveal the contradiction of the legislation intent and actual situation, as well as the name of inherent conflict; the third part. I introspect that all aspects of legislation(the self-contradictory between parallel relationship with inclusive relationship, the conflict of form of interpretation and substantive interpretation, the fragmented evaluation of subjective elements, and the vagueness of the legal terminology),theory(non-comprehensive of rights and obligations of the provision, the repeated evaluation of the provision and expected possibility, the subsection fuzzy of defense limit) and practice(shelved and expansion of the application situation of provision, the permissions tightening of defense under the protection of human rights) had serious flaws and conflicts, where the problem is, how to grasp this seemingly rational law; the fourth part, firstly, the perfection of self-defense system(the judicial protection of people after self-defense, the duty of proof and the provision amendment after self-defense) will play the role of private relief better. Secondly, the dispute of retention value and the reason of abolition, let us more clearly recognize the advantage and disadvantage of the provision. It provides for prediction of the direction of self-defense. Facing to it, retain and repeal or fundamental amendments are related to the vital interests of every citizen. Through the comprehensive consideration of various factors, the paper pointed out that the provision will eventually be abolished, but requires certain conditions.