Study On The Unlawful Infringement Of Justifiable Defense

The establishment of justifiable defense in criminal law, it is an exemplification of “just don’t have to bend to injustice” in the field of modern criminal law, which is the thoughts of classical natural, the purpose is to encourage citizens to rebel against the illegal crimes, to maintain social stability. Unlawful infringement, as a cause condition of the justifiable defense, because of the description towards the condition is general and abstract in the old and the new criminal law in our country, which is likely to cause a lack of clear understanding of the case and can not be impartial and objective to conviction and sentencing the case. The author gives an discussion of the concept of criminal violations in theory, characteristics, scope and specific issues, and strive to form a workable, complete system of criminal violations.In this article, because of the conception of criminal violations is not specific and unified, the author summarized the concept of unlawful infringement from four characteristics: objective illegality, invasive, urgency and defensive possibilities. For the determination of the nature of “unlawful”, there is a huge difference between objective illegitimacy/subjective illegitimacy in criminal illegitimacy of continental law system and the unity of subjective and objective point of view in the theory of China. In fact, only persist basic position of objective illegality, can we make an effective self-defense system.For the determination of the basic scope of illegal violations, there are three main theories: the criminal act view, the unrestricted and the restricted criminal act view. By comparing the three views with legislative intent and judicatory practice, I insist that unrestricted criminal act view is more consistent with the content of illegal violations. The author gives a range of correction on the basic range of criminal violations, to discuss the controversial issues in reality, negligent act, omission act, the violations without responsibility, illegal violations of juridical person.Finally, basic on the case of disrupting public service of Zhang Long qi and Pan Rong, In view of the case that infringe the legitimate rights and interests of citizens because of the improper enforcement from administration. The author gives a view that citizens are entitled the right to defense in the case of the defective administrative action or even invalid administrative action with the elements of self-defense, and with purpose of protecting the legitimate rights and interests. On the basis of the theory that get rid of the Public Force and the crime of disrupting public service, the author proposed the establishment of the necessary conditions for the improper conduct criminal violations of law.