Theoretical Reflection And Reconstruction Of The End Of Special Defense

The criminal law of the PRC (1997 revision) revised terms of justifiable defense,and set up special defense to reverse the past legal too harsh restriction on defense right .But 20 years later,the Special Defense’s usage is not optimistic,even exist in name only. According to the big data of the judicial referee, in most cases focus on the question of special defense end point judgment. To explore its causes, this paper based on combing the mainstream of special defense end point judgment standard as the starting point of view and in the judicial practice, through the case of the traditional theory to examine and analyze a number of reasons, of which the most important reason is the interpreter continuously to narrowed the time condition of defense right under the guidance of prevent the abuse of thought, lead to the situation of the end of the behavior Is equal to the defensive end errors in judgment. To solve this dilemma, it puts forward judgment method to determine the end of the special defense of the concept of space-time point, so as to solve such problems in the judicial practice.This paper is divided into four parts.Part One: the theory and practice of the special defense end point. Combing the mainstream views and practice standards of the current main special defense end point,in accordance with the mainstream theory and practical operation standards, through the case of mechanical logic deduction, it is concluded that the opposite results.Through the analysis of big data can be learned that this is not a simple case, but generally exists in the special defense case.Part Two: the reason and logic of a special defense end point mechanical deduction. Main analysis of the cause of the results, one of which the deepest reason was that the interpreter out of concern for defense right abuse and narrowed the defense right time, that appear equate behavior to end with the end of the defense.Part Three: the construction of special defense end point,and advocating for the space and time criterion. Through using the principle of concept of space and time on the spot, the introduction of special defense end point judgment. In terms of time, confirmed after the behavior of the existence of the real risk, put forward defense subjective judgment standard. In terms of space, from the perspective of history to prove safety space, the space range of standard with objective standards of ordinary people. This will be a combination of these to jointly determine the dynamic special defensive end point.Part Four: the reconstruction on special defense end point. To explore the nature of special defense time range to law text interpretation and essence connotation analysis actual special defense end point, to verify the rationality of the judgment standard of time and space. Then respectively in this paper, the defense people cognition level of mental state, the objective judgment, and judging from the secondary damage actuality of space and time.