An Analysis Of Excessive Defence On The Case Of Nie

Excessive defense,an important part in the system of defense,has always been the focus of the theoretical and judicial practice realm.But in the definition of the excessive defense,especially the criterion of objective limitation and subjective crime,has been argued heatedly and failed to come to any agreement in the theoretical and practical realm.These will not only affect the correct judgment of justifiable and excessive defense,but may even lead to misjudgment of crime and non-crime.Therefore,the article introduced the over-defense cases of Nie,Zhang and Wang.Through the introduction of the actual cases,we summed up the focus of the dispute between the prosecution and the defense.We find out that the theoretical differences in these cases focus mainly on the two aspects:one is how to determine the over-defense actor's excessive defensiveness on the objective limit condition,the other is how to judge their excessive defensiveness on the limit of subjective crime.This article focuses on it to do the research to theoretically combing the limits of defensive conditions and crime conditions.First of all,to the objective limitation,it can be subdivided into behavioral limitation and result limitation.On behavior limitation,the necessary limitation should be the primary basis for judgment,and the"subjective and objective unification" should be taken as the standard principles.In combination with other factors during the occurrence of defense,the principle of prior judgment should be adopted to judge the defensive behavior.If it is obviously beyond the necessary limitations,it can be judges as over-defense.For result limitation,whether serious damage can be quantified is used as a criterion for judgment.If causing the unlawful infringement of a person serious injury,death or significant property loss,the result is excessive.Secondly,it is necessary to analyze the subjective cognition factor and the will factor of the defensive person in the case of the subjective guilt.If existing indirect intention,negligence or overconfidence,it can be regarded as the subjective crime of the defender.In the end,only the defender objectively exceed the limitation and subjectively guilty,it can be regarded as excessive defense.Through the combination of the actual case and the theory,we aimed to make clear the criterion of the limitation condition and the form of the offense in the process of studying the specific case of self-defense,and then make some efforts to the correct cognizance of the excessive defense and even the perfection of the defense system.