The Research On The Application Of Special Self-defense

The criminal law of China revised in1997has made quite great amendments to theprevious self-defense system, where it is a particularly noticeable addition than the provisionof paragraph3, which expressly emphasizes defense actions for some violent crimes shouldnot be regarded as excessive defense to deal. Not only has it an important practicalsignificance to encourage ordinary people to fight against criminals, but also it can clear thespecific judgment basis for referees, and it is also helpful to maintain and achieve the valueof law on justice and order.The theoretical controversy of special self-defense began in the opposing argumentwhich was whether the special self-defense was established in legislative process. Accordingto careful deliberations, the national legislature ultimately set up the special self-defensesystem the in the criminal law revised. However, there is still considerable controversy aboutsome theoretical problems related to it in the field of criminal law and judicial practice whenthe system on special self-defense is in process of practical application. Under the guidance ofthose controversial theories, judgments from referees are more difficult to understand andaccepted by ordinary people. Then some cases related to the special self-defense will be veryeasy to upgrade to hot social spots, bring problems for normal judicial operation and alsoindirectly affect the enthusiasm of citizens to exercise the right of self-defense. Therefore, it isnecessary to comb and explore some theoretical issues on special self-defense and help solvepractical problems better.In this paper, some controversial theoretical issues on special self-defense stem from ahomicide case from Xuan. Though the discussion of these theoretical issues, it can provide anadequate and reasonable basis for this case. Addition to the introduction, the paper is dividedinto six parts, their basic contents are as follows:Before four parts: cause of the case,content of the case, focus of controversy anddifferent opinions. Though the introduction of whole the case, some theoretical issues onspecial self-defense are defined on the cause condition, the time condition, the imaginarydefense and afterwards defense. The fifth part: the legal analysis, which is the core content of this article. Firstly, a simpleintroduction about the special self-defense, that explores the name of the right of specialdefense and the right relationship between the right of special defense and the right ofgeneral defense. Secondly, a discussion to the constituent elements on special self-defense,which focuses on its cause condition and time condition. In cause condition on specialself-defense, in order to correctly understand violent crimes that seriously endanger thepersonal safety, paying attention to meanings of "serious","personal safety" and "violentcrime" is needed; In time timing condition on special self-defense, the deadline of violentcrimes that seriously endanger the personal safety takes "urgent threat of violence toeliminate" as a symbol which should apply the "objective criteria"--taking judgment fromthe average person when put him into the same environment. Finally, the imaginary defenseand the afterwards defense are analyzed and compared, a conclusion can be drew that thedefender of the afterwards defense is deliberate.The sixth part: findings of the research. Based on theoretical analysis and contents of thecase, the third opinion in the opening case is correct.