The Plight And Outlet Of Judicial Application Of Justifiable Defense

The judgment results of the cases related to justifiable defense have attracted the society’s wide attention in recent years. Justifiable defense system has a political slant since being written into the criminal code. Seeking a better way to deal with justifiable defense cases is important to reveal social justice and safeguard the social stability. However, judicial branch is too cautious about the determination of justifiable defense cases, and a lot of cases that should be found innocent on the ground of justifiable defense are finally identified as constituting crime of intentional injury after the amendment of justifiable defense system of criminal code in 1997. On the other hand, under the influence of unauthentic news of media and retribution sense in folk, there is a gap between the judging standards of justifiable defense by judicial branch and the pubic. The proposition of the media and the public is mostly to praise virtue and punish vice, and expand the scope of justifiable defense. The difference of the judging standards results in a series of cases such as Deng Yujiao incident, Xuan intentional homicide case, Huang Zhongquan incident, Zhang Dejun incident. These cases bring about the dispute about safety, and the media and the public doubt about the judicial judgment. Aiming at the plight of judicial application of justifiable defense, our judicial branch should not cater to public opinion blindly based on social appropriate conducts theory, redound the threshold of judicial defense, and waver the legal authority. We should give a normative explanation for the composite condition of justifiable defense based on objective standpoint, take all the details of a case into consideration, and affirm the case which should be innocent on the ground of justifiable defense as justifiable defense case bravely. The article, researches and analyzes the key issues on judicial application of justifiable defense supplemented by case analysis from both subjective and objective aspects of actor and defender respectively, to refine the application standard of justifiable defense.The article firstly proceeds from the plight of judicial application of justifiable defense. We can find out by collecting related cases that the cases which are declared not guilty on the ground of justifiable defense are in tiny amounts with distinctive features. In these cases the powers between defender and actor have significant differences, and rarely of them result in the death of the other, the defense chosen by defender is restrained. At the same time, there are such a lot of cases which should be innocent on the ground of justifiable defense are finally identified as constituting crime. These cases expose many problems such as there is no clear boundary between assaulting each other and justifiable defense, beating back by weapon after being beaten is not declared as justifiable defense, the judgmental arguments are poorly reasoned, and so on. In conclusion, the public support to expand the scope of justifiable defense, and the judicial branch is so cautious about the determination out of the need of utilitarianism. This difference results in the gap between the public and the judicial branch on the standard of justifiable defense.In the second chapter,the article contradicts the views on expanding and narrowing interpretation of the composite condition of justifiable defense proceeding from position choice. In essence, these views of expanding and narrowing interpretation are on the basis of act utilitarianism. On the on hand, deference to public opinion should not be the reason to confirm justifiable defense. On the other hand, considering that the defender’s defendant character should be affirmed and the necessity of general prevention to initiative violation,the judgment which narrows interpretation excessively to justifiable defense should be restricted, and the judicial branch should adhere to rule utilitarianism, give a normative interpretation to the composite condition of justifiable defense.In the third and fourth chapter,the article gives a normative interpretation to the composite condition of justifiable defense from the aspects of actor and defender respectively,. In the aspect of actor, illegal violation must be objective reality and ongoing, whether the illegal violation is objective reality or not is the key to distinguish between assaulting each other and justifiable defense. In general the actor should attack at first, but there are exceptions when the assaulting is self-invitated by the defender, it is also possible to be declared as justifiable defense. In the aspect of defender, the defender must have intention to safeguard lawful rights, but only realizing the assaulting is objective reality is also be allowed. The options of defense should not be restricted excessively. Judging the limits of justifiable defense should be based on objective criteria, and following the principal of equity of weapon, the defender should not be required to hold obligation to escape or take alternative measures.In the last chapter, judicial application of justifiable defense should give a normative interpretation to the composite condition of justifiable defense, and the supreme people’s court should set a clear criteria of justifiable defense by guiding cases. The judicial branch should respond to the public timely when the public doubt about the judicial judgment to make judicial more open and transparent.