Prerequisites And Limits:Two Key Issues In China's Justifiable Defense Practice Breakthrough

The dispute caused by the “Yu Huan” case highlights two major problems in the process of application of the legitimate defense system: the issue of the application of defense premise,that is,the issue of judging the standard of illegal infringement,and how to get rid of “only result theory” in the defense limit judgment.The way of thinking.The right of legitimate defense is a legal right granted to citizens by the criminal law.It is a private remedy for citizens when they cannot obtain public power remedies.Therefore,how to reasonably exercise proper defense rights concerns the immediate interests of every citizen.There are not a few scholars discussing the proper defense system.Whether in various criminal law monographs or publicly published papers,most scholars are five prerequisites for justifiable defense: defense premise,defense time,defense intention,and defense.Targets,defense limits-start with,and then discuss specific judgment criteria under each applicable condition.The current criminal law in mainland China clearly stipulates the application and limits of legitimate defense rights.However,because there is still no clear judicial interpretation,there is a confusion in the application of the defense system in practice.And the academic community's concrete judgments on each applicable condition of the just defense system are inconclusive,and help to the judicial practice is extremely limited.For such a theoretical and practical dilemma,the extraterritorial experience can bring about certain enlightenment through the comparative research method.In mainland China,illegal infringements are usually being concluded as a criterion for judging urgency,and judging the start time and end time have many different theories and viewpoints.These ambiguities lead to the current ambiguity in judging urgency in the judicial practice community.In this regard,we should make clear whether illegal infringement exists or not.We should not use threats,but should use urgency as a criterion for judgment.Because defensive behavior is a form of legitimate behavior,as long as illegal imposition has urgency and may endanger the legal rights of the person or other person,the right to defend can be exercised,regardless of the magnitude of the threat.The urgency of illegal infringement in the Taiwan region is based on the point at which it is most effective to stop the occurrence of unlawful infringement.Defensive limits include the limit of defense behavior and the limit of defense results.There is a parallel theory,inclusive theory,and overlapping theory on the relationship between the two.The cross-cutting point of view is that when defensive limits are identified,both the limits of the behavior and the limits of the results should be considered.The two are in a parallel relationship,but at the same time,the limits of behavior and the limits of results are not two completely independent paths and are not related to each other.The two can confirm each other.When determining the limits of defensive behavior,this article considers that the standards of defensive behavior in the Taiwan region are quite reasonable and worthy of reference.In the limit of defense results,it is not possible to judge the cause of “significant damage” only by the appearance of serious injuries and death results.Instead,it should combine the damages caused by unlawful infringements,and compare the results of defense with the dangers of infringement,comprehensively and comprehensively.Look at the limits of defense results.While drawing lessons from the extraterritorial experience and reasonableness,we must also fully consider the actual situation in the mainland.In order to change the situation in which China's legitimate defense system is clearly inadequate in judicial practice,the parties' private remedy rights are fully guaranteed,and the prerequisites and defense limits of the legitimate defense system should be made at the institutional level.Practical improvements.In a comprehensive manner,in the following four aspects,we will complete the reform of China's current legitimate defense system: the improvement of legal norms,that is,through the introduction of corresponding judicial interpretations and other methods,to ensure that it is guaranteed from the actual norms;the improvement of judicial practice,that is emphasized Judicial personnel have organically and comprehensively considered the “obviously more than necessary limits” and “causing major harm”.At the same time,they clearly grasp the urgency of judging the core urgency problems of illegal infringement,and attach importance to the normative expression in trials;The use of social forces to counteract criminal law norms;set up special charges for more general defensive offenses,that is,further promote the refinement of the proper prevention system from a crime.