The Discussion On Judicial Determination Of Legitimate Defense And Penalty Application

This paper mainly studies the judicial determination of legitimate defense in judicial practice and penalty application.It is an important legal system to protect the special rights of nation,other citizens and their own legitimate interesting case of emergency.However,since the new criminal law in 1997 to modify the legitimate defense system,the number of cases being identified as legitimate defense is diminishing.There is a contradiction between the grasp of the judiciary standard of legitimate defense and the general public recognition,which lead to the broad public misunderstanding on what is legitimate defense and what is intentional injury.This kind of situation would make legitimate defense system losing its effectiveness and the guidance of the role of citizenship norms.Therefore,in the face of problems existing in the process of legitimate defense in the judicial practice and penalty application,we need to take them seriously and analyze the causes of the problem carefully.This paper analyzes the problems existing in the process of legitimate defense based on the specific cases in the judicial practice.and finds out qualitative,causes and influence of controversial issue on identifying legitimate defense as Intentional injury from different perspectives in the judicial practice,and then put forward the relevant suggestions in order to provide a valuable reference for the judiciary to correctly use the proper defense system in judicial practice.In particular,this paper is divided into five parts on deliver the problems on judicial determination and penalty application of legitimate defense in the judicial practice.The first part is the introduction,it illustrated mainly from the view of judicial determination and penalty application on judicial practice of legitimate defense problem on sources,performance,influence,and research methods and other aspects.The second part is about the status and characteristics of judicial determination and penalty application of legitimate defense cases.It analyzes the status and characteristics of legitimate defense by Combining with the specific controversial cases.The third part discusses the problems of judicial determination and penalty application of legitimate defense in judiciary practice.It elaborates some of the existing problems on judicial determination and penalty application of legitimate defense by analyzing the controversial case.The fourth part is about the causes of judicial determination and penalty application of legitimate defense.It analyzes the specific reasons on the problems of identifying legitimate defense from the choice of different judicial ideas,the contents of the legitimate defense rules,outer-case factors and the judiciary,judicial Officers and other aspects.The fifth part proposes some countermeasures on improving judicial determination and penalty application on legitimate defense.According to the previous analysis,this part gives some suggestions to solve the problems.Hoping those suggestions will provide valuable reference for the judiciary to proper the usage defense system in judicial practice.