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Inverse Defense

Posted on:2018-03-27Degree:MasterType:Thesis
Country:ChinaCandidate:W W LiuFull Text:PDF
Abstract/Summary:PDF Full Text Request
Inverse defense,that is,the reverse self-defense,refers to the process of defense in the original,the original unlawfully against people in order to avoid the defenders from the original defenders are inappropriate defense against the last resort to take the reverse defense behavior.Justification defense system has been a hot topic in domestic research,and our scholars have paid much attention to the elements of proper defense and the boundaries of defense.However,with the deepening of the research,some scholars have focused on the transfer of human rights protection from the beginning to the protection of the human rights of the unlawful people,and began to question the legislative defects of our legitimate defense system,That China's current legitimate defense system and the convergence of the judicial system is not conducive to the protection of unlawful infringement of human rights and interests,and even to a certain extent,limited and deprived of illegal human rights violations,these doubts is our anti-defensive theory to produce Foundation.Anti-defense is to defend the system in the legitimate defense system to prevent the original anti-defenders,in order to protect the perpetrators have been ignored human rights.With the continuous development of human rights theory at home and abroad,the human rights protection of criminals has been paid more and more attention.More scholars have been involved in exploring the protection of the rights and interests of the defenders in the proper defense system.Of course,the development of legitimate defense system has been relatively mature and stable,and then in which the establishment of anti-defense rights on the need to adjust the interests of the entire system to adjust,which is a lot of scholars against the reasons for anti-defense,so in China put forward anti-Facing a certain risk.This article is the position is to agree with the anti-defense rights,and from all angles discussed the legitimacy of the inverse defense rights,the construction of the anti-defense system and the anti-defense over the responsibility of the same time also put forward their own recommendations.This paper is divided into seven parts:The introduction part mainly clarifies the purpose and significance of the topic,summarizes the domestic and foreign research results on the inverse defense,and lists the research methods of this paper.The main content of the first chapter is the concept of the inverse defense,by comparing the "tort","misconduct","legitimate defense" these concepts to initially understand the concept of anti-defense.The main content of the second chapter is the history of the concept of anti-defense,first of all,to study the theory and development of foreign anti-defense theory,including foreign defense theory against the opposition and opposition.Followed by the study of the domestic anti-defense theory of the proposed and development,here mainly from the Criminal Law Article 20,paragraph 3 of the special defense right to start,respectively,the Chinese scholars for the special defense of the right to challenge,against the defense of the right and Defense against the right.The main content of the third chapter is to discuss the legitimacy of the inverse defense from all levels.This part is divided into six parts:the first part is from the "law is no prohibition of freedom" point of view of the anti-defense rights of the "freedom";the second part is from the perspective of human rights protection is the protection of human rights The third part is to explain the legitimacy of the anti-defense in the defense phase from the relativity of the harm and the victim;the fourth part is from the point of view of the balance of interests that the law protects the law,The fifth part is from the perspective of foreign legislation to explain the anti-defense rights in line with the law of law development and withstand the time test,and thus certainly the inverse of the defense of the legitimacy of the anti-defenders,TheThe main content of the fourth chapter is to discuss the establishment of the inverse defense,that is,to complete the construction of the inverse defense system.This chapter is divided into two parts:The first part mainly elaborates the legal conditions of the establishment of the inverse defense,including the causal conditions,object conditions,time conditions,limit conditions,subjective conditions and restrictions.The second part mainly elaborates the social conditions of the establishment of the inverse defense.This part combines the specific cases,mainly the case of defense,to discuss the acceptance of the anti-defense theory applied to the judicial practice.The main content of the fifth chapter is to discuss the responsibility of the anti-defensive at that time.This chapter is divided into four parts:the first part of the first distinction between "anti-defensive too" and "continue to harm behavior" concept,only a clear inverse defense over the exact boundaries,can fiurther explore the issue of responsibility;the second part is And the third part is to elaborate on the subjective recognition standard of the inverse defense,from the three points of intentional,negligence and no fault.The fourth part is about the legal liability of the anti-Can not be derogated.The conclusion part mainly summarizes the whole text,and puts forward the idea of the anti-defense theory as soon as possible into our criminal law and the early application in the judicial practice.
Keywords/Search Tags:Anti-defense, legitimate defense, Over-defense, Human rights protection
PDF Full Text Request
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