Study On Problems Of Special Self-defense

Special justifiable defense (hereinafter referred to as "special defense") clausemeans that the criminal legislation of our country further mature, it makes up thedefect of the justifiable defense system, let the citizen’s personal interests are betterprotected, this is a major achievement of China’s criminal legislation. Many expertsand scholars or judicial personnel of special defense has been studied very deeply, but,compared with the foreign mature self-defense theory, relative to the difficult andcomplicated cases in judicial practice is increasing, which lead to differentunderstanding and debate, the special defense and a lot of difficult problems to bestudied. At the same time, the establishment of a special defense or not, crime andnon crime related personnel, when the penalty and improper punishment, punishmentand light punishment, major. Therefore, research on special defense for the judiciary,the citizen, is of great significance for punishing, preventing and reducing crime.Before exploring the characteristics of special defense, special defense must firstclear study compared to the justifiable defense, prevent the justifiable defense andspecial defense is be confused, but also lay the foundation for the exploration of thespecial defense problems. Research on knotty problems of special defense, this paperfrom four aspects to discuss.On the causes of the condition, focuses on "seriously endanger personal safety"point to grasp, such as homicide, rape, robbery, definition, kidnapping, murder andacts in the special defense standard. For example, the crime of kidnapping in anextremely dangerous state in the hostages under control, to any form of abduction,should allow for the implementation of the special defense; for example, theimplementation of non violent rape crime, due to violations of women’s sexualfreedom and rights, should also be the cause of the special conditions of defense,which is a innovation in theory.When the time conditions, considering the exercise of the right of specialdefense can cause serious consequences, the timing condition should be distinguished from justifiable defense exercise opportunity condition, which should be strictlylimited to the start time, in order to promote the "face", in order to directly facing theserious infringement, as a special defense start time conditions, to prevent the right ofspecial defense abuse. This paper thinks, pre installed defense device generallycannot be established special defense, but if for the prevention of serious non legalperson of physical abuse, you can set up the special defense.In the defense objects, discusses the problem of special defence to exercisewithout capacity of criminal responsibility and drunk people, we can exercise thespecial justifiable defense, but should be strictly limited applicability, first ask thedefense for emergency, in order to reduce or eliminate the unlawful infringementpeople against ability as the first goal, the distinction of complete criminalresponsibility and no criminal responsibility to a certain extent, so as to avoid thetragedy of moral type.In the subjective conditions of the special defense, subjective intention, defenseawareness of errors are discussed, the identity of special defense like self-defense,have the subjective intention, considering the urgency of special defense, specialdefense behavior is the subjective intention of defense, to answer the intention ofdefense "negative" is proposed the defender in a tense, urgent, not the problem, whichin theory is also an innovation.On the whole, this clause in this paper focus on the experience of the intention oflegislators, combined with judicial practice problems and difficulties encountered,combined with some foreign theories, considering the fair treatment of specialdefense right and the unlawful infringement of the legitimate rights and interests ofinquiry, hope the research and application of special defense right help.