A Study On The Main Misunderstandings Of The Justified Defense Judgment And Its Countermeasures

Justifiable defense theory has always been an academic problem that plagues China's criminal law community.The long-term research in the academic circles has been controversial and it has not been possible to achieve the same understanding.In judicial practice,the judicial personnel are more cautious and conservative about the application of legitimate defense clauses,so that the content of justifiable defenses prescribed in Article 20 of the Criminal Law is often not used in real cases.The functional value is limited and reduced.In the case of Yu Huan's intentional injury that attracted public opinion,the court of first instance sentenced the defendant Yu Huan to life imprisonment.After the trial of the second instance,he considered Yu Huan to be of a defensive nature,but of the excessive defence,and the defendant was sentenced to five years imprisonment.The case started from asking for the debts violently.During the process of demanding for debts,the victims Du Zhihao and others carried out verbal and behavioral insults against the defendant Yu Huan and his mother.During this process,there had been illegal imprisonment and illegal infringement existed objectively in the whole process.In the determination of the defense limit,we should adopt the view of necessary theory,which can eliminate the inherent flaws from basically compatible theory and compromise theory,and which is more in line with the legislative purpose and purpose of Article 20 of the Criminal Law.In the case of illegal imprisonment and other continuing infringements,it is necessary to pay attention to the continuous infringement of the cumulative total of dangerous situations.When the dangers in the continuous process accumulate to a certain degree,it will inevitably lead to quantitative changes.Therefore,for the continuous illegal infringement,we should make a comprehensive and overall judgment on the intensity of its infringement,rather than merely identifying the illegal infringement that we faced at the moment of implementing the defensive behavior.In addition,even if the nature of the victim's unlawful infringement is a robbery or an murder,it is difficult to apply special defense provisions in this case.The amendments to the "Criminal Law" of 1997 made a major legislative amendment to the justifiable defense,aiming to relax the applicable standards for proper defense and reduce judicial abuses.However,the current status of the judiciary has not yet been reversed.This is due to misunderstandings in the judicial practice community regarding the identification of legitimate defenses.Firstly,we often adopt a logical judgment of “only result theory” in judicial practice,and to define the necessary limits with “damage results”.To a certain extent,the threshold of defensive limits is reduced,which is against the purpose of legislation.In the process of identifying excessive defense,the defensive behavior as a whole is mechanically fragmented,and the defensive behavior,which belongs to the whole,is divided into two parts.The first half is necessary to stop illegality,and the latter part is excessive defense.Secondly,as long as it caused a major result of death and injury,and does not belong to the special defense provided for in Article 20,paragraph 3 of the Criminal Law,it is directly determined that the defense is improper or deliberately committed.Absolutely formalizes and measures legal benefits,and applies post-behavioral standards to judge the necessary limits.?Thirdly,people often misunderstand mutual attacks and broaden the definition of mutual attacks.And people regard the counterattacks as mutual attacks,which easily recognize mutual advances and deny the nature of defensive.To solve the above problems,we must establish a justification for the judicial norms of defense.First of all,to properly understand the function of measuring legal benefits,we should make substantive and normative judgments on the principles of legal benefits measurement.Legal benefits measurement should be secondary and auxiliary in legitimate defense judgments,and also secondary in logical judgment.Secondly,we should establish the correct concept of legitimate defense.The criteria for the identification of unlawful infringement should be expanded and applied,and the standards for identifying mutual defiance should be strictly limited.Finally,in the methodology for judging the necessary limits of defense,"obviously exceeding the necessary limits" and "causing major harm" are two separate requirements.The identification of excessive defensive should be combined with the necessary defense theory and objective imputation theory.The condition of "obviously exceeding the necessary limits" should be given priority and have a decisive influence on the justification of justifiable defense.