Time Affirmation For Justifiable Defense Implemented By People Imprisoned And Repeatedly Violated

The precise identification of the defense time is directly related to the identification of justifiable defense,which is a difficult issue in the administration of justice.However,it is more complicated about the identification of the time of defense for repeated and constant violations under the illegal detention.This paper,with the case of Cheng as an example,examines the different positions that two foreign legal systems hold on identifying the time of defense,together with various claims that the theoretical circles have on the time and conditions of justifiable defense,finally concludes the subjective conditions to estimate the time of defense from the angle of the defender,and the objective conditions to estimate the time of defense from the angle of the existent unlawful infringements.The paper has about 21,000 Chinese characters;besides the introduction,the body of the paper is divided into four parts:Part I is the basic situation of the case.Through a brief introduction to the case of Cheng resisting against Wang,the paper narrates different opinions for the identification of the time of justifiable defense,and then summarizes the disputing focuses.Part II is a legal principles analysis on the identification of the time of defense.First of all,the paper investigates the affirming theory of the time of defense held by two foreign legal systems,and summarizes two kinds of positions including the subjective position and the objective position,and concludes that the objectivism should learn from the subjectivism,and that the objective should be combined with the subjective by analyzing and summarizing the standards that the two positions involve.Moreover,concrete methods and standards of how to combine the two are put forward.Second,based on the standpoint that the subjective consistent with the objective,the paper introduces and evaluates the theories about the beginning and ending of justifiable defense held by the theoretical circles,and concludes that the beginning time of justifiable defense may be judged from a combination of being subjectively sincere and reasonable with the situation of having objectively unlawful infringements.About the ending time of justifiable defense,the paper draws a conclusion on an amended and proper method of the theory of eliminating dangers.Moreover,the paper analyzes the definition and characteristics of repeated violations under the illegal detention,and the internal relationships among each act of infringement.Finally,the paper quotes the theory of abused women syndrome,applies it to the type of crime of repeated violations under the state of illegal detention,and provides other perspective from female and reasonability.Part III is the conclusion of the case study.It firstly summarizes three kinds of illegal infringement in this case: illegal detention,rape,and intentional injury.After briefly introducing that there was always illegal detention in the case,the paper mainly studies if there were rape and intentional injuries when defenses happened.Firstly,considering whether there was a rape when the defense happened,the paper refers to the characteristics of crimes of repeated violations under the state of illegal detention,by applying the amended compromising theory and the theory of eliminating dangers,draws a conclusion that a rape started from the first time when Wang had a serious danger of infringement on the sexual autonomy of Cheng and when Cheng realized that she might be raped,to the time when the dangers of Cheng's being raped ended.On the basis of this,referring to the theory of abused women syndrome,the paper further demonstrates the reasonability of the time of Cheng's defense,and finally concludes that there did exist the illegal infringements of raping when Cheng had the defense;her defense against rape conformed to the condition of time in a justifiable defense.Second,the paper uses again the judgment on the starting and ending time of the time of defense to analyze the act of intentional injury,and concludes that when Cheng took a defense,the previous intentional injury had ended,while a new intentional injury had not started.Therefore,Cheng's defense of the intentional injury did not conform to the condition of time of a justifiable defense.Part IV is the enlightenment of research.Through an analysis on the whole case,the paper elaborates the characteristics of the crime of repeated violations under illegal detention,argues that subjective and objective should be consistent regarding the judgment of the time of defense in such crimes,that is,amends the one-sided method that judges the time condition of justifiable defense merely from the angel of the infringer.Additionally,it uses the amended compromising theory and the theory of eliminating dangers to define the condition of time of defense.