Research On The Limits Of Justifialbe Defense And Over Defense

With the continuous development of the construction of the rule of law in China,the legal consciousness of the citizens is gradually increasing,the concept of rights has been gradually improved,and the right to defend and defend the right as a citizen has been paid more and more attention.The limit of justifiable defense and over defense is the core of the right of defense.It is the key to judge whether the defense acts constitute justifiable defense or the over defense,which determines whether the defense behavior is lawful to be protected or should be punished,so it is of great significance to determine the boundary of defense accurately.The twentieth clause and the second paragraph of the criminal law regulate the defense boundary,that is,obviously exceed the necessary limit,causing significant damage.However,due to the fuzziness of the provisions,there are some disputes over the understanding of the relationship between obviously exceeding the necessary limits,significant damage and obviously exceeding the necessary limits and causing significant damage,and the specific criteria for the identification of defense limits in judicial practice are also inconsistent.On the basis of this,this article from the specific case,through the analysis of the controversial case of humiliating homicide,focuses on the issue of defense limits in China's criminal law theory and judicial practice,and hopes to contribute to the judicial trial of our country.This article is divided into six parts:The first part,an introduction.This part is a brief description of the case of humiliating homicide.At the same time,it analyzes the contents of the defense behavior in the first and second trial decisions.Through the analysis of the two judgments and the views of the relevant experts and scholars and the cognition of the public,the discussion of the defense boundary is drawn out.The second part,this part focuses on the status of the defense boundaryidentification in the theoretical and practical circles of China,and finds out the existing problems of the defense boundary from the present situation,and further analyzes the reasons for the problems.The third is the accurate location and value of defense boundary.Through the analysis of the relationship between justifiable defense and defenses,this part finds out the essential difference between the two.From the differences of the two,we can analyze the exact location of the defense limits from the different parts of the two,and lay the foundation for the fourth and the fifth chapters of this article.At the same time,in the second section,this chapter sets forth the value of accurate positioning of defense boundaries,so as to illustrate the importance of accurate identification of defense boundaries.The fourth part,the theory and analysis of defense boundary.This section is divided into two sections.The first section focuses on the interpretation and analysis of the provisions and theoretical studies on defense limits in Germany and Japan,and a brief analysis of the relevant provisions and theories of the over defense limits in the United States.By studying the related theoretical systems abroad,we should extract the essence and discard the dross and learn from foreign experience to achieve their own development.The second section expounds the theory of defense boundary in China,finds out its shortcomings through analysis,and further puts forward its own view.The fifth part,the analysis of the legal provisions of the defense boundary.This section focuses on the analysis of the legal provisions of the boundary of defense and further puts forward his own views,and defines the legal terms such as obviously more than necessary limits and significant damage,and analyzes the relationship between obviously exceeding the necessary limit and causing significant damage.The sixth part,how to identify defense boundaries in judicial practice.This part is the key point of this article.Through the clarification of the problems existing in the defense boundary,the combing of the relevant theories and the analysis and summary of the legal provisions,this part focuses on the comprehensive and concrete analysis of the factors that should be considered from the three levels of judicial interpretation,the principle of identification and the standard of identification.