A New And Dangerous New Solution To Justifiable Defence

Justifiable defence is often in the countries all over the world as a legal fight against illegal and criminal behavior give individual citizens and legal rights,at the same time,this system is also viewed as one of the criminal illegality deterrent.Since the system is prone to abuse of power in social practice,countries have set certain prerequisites while setting up the justifiable defense system.Such as China's "criminal law" article 20 on the justifiable defense premise,but the rule is relatively fuzzy,especially for the establishment of justifiable defense,academic circles there are also a variety of views,tong said the illegal violation of urgency as constitute one of the necessary conditions for justifiable defense.However,the ambiguity and roughness of the legal provisions lead to greater uncertainty and inoperability in the application process,which is also widely vexed by judicial practice.Recently,the discussion of shandong province in the first identified in huan huan case does not constitute a justifiable defense,the reason is that "the situation does not have the immediate danger of justifiable defense",the first-instance judgment out of the country,academic circles also on illegal violation of urgency that shown by the rigidity of the widely discussed.In this paper,several typical cases as the clues,analysis,the urgency of justifiable defense of justice and demonstrate how to grasp the theory of immediate danger that judicial organs architecture in order to exert the positive of justifiable defense system.In the light of the actual situation of justifiable defense in judicial practice,this paper explores the new standard and connotation of the new standard which gives the immediate danger of justifiable defense.This paper is divided into five parts.According to the general argumentation process of academic paper,we find sufficient evidence to discuss this point of view.The first part is the introduction.This part mainly analyzes the justifiable defense of the immediate danger of selected topic origin,realistic and theoretical significance,through access to relevant information both at home and abroad about the violation of justifiable defense urgency research present situation and future development direction are introduced,and the other is briefly summarized the research methods and innovation points of this paper writing.The second part is to summarize the legislative model by comparing the relevant legislative provisions of the Anglo-American legal system and the continental law system,and obtain their respective advantages,and make it a reference for our country.Comparative study methods has always been our country law,so in this paper,the continental law system and Anglo-American law system and determination of justifiable defense urgency of legislation rules and evaluation criteria were analyzed,and find their own advanced system,and combining with China's specific national conditions,the demonstration of the advanced experiences for our country.The third part is about the realistic predicament of the judicial determination of China's justifiable defense.The classic case summary can fully analyze the key factors in the reality of the urgency to understand the differences,such as public power,illegal detention,infringement tools,and so on.By judicial ideas and other cognitive factors,in the process of judicial cognizance,the judge often caught the theoretical error caused by the inertial thinking and make hard to suit the identified as a result,the scope of theory mainly includes the illegal violation will be limited to serious violence,immediate danger starting time carry out from the violence,the public power intervention in the case does not have defensive urgency,ignore the infringement sustainable factors,to defense results determine whether have defensive urgency as the basis.The fourth part is the core of this article,through the research and demonstration of the foreword,it summarizes the construction of the theoretical framework of the judicial determination of China's legitimate defense.Firstly,the principle of urgent danger identification is analyzed and its theoretical principle is fully demonstrated.Then the identification of the urgent danger is divided into general situation and special situation,and the general situation is mainly from the general standard of object,time and degree as the evaluation system of urgent danger.The special cases include persistent infringement,compound infringement and the urgent danger determination of the failure of public power trust protection.The fifth part is the conclusion,which summarizes the theme and prospects for the future development.