The Judicial Boundary Of Self-Defense And Mutual Assault

Nowadays society is in a transitional period when social contradictions are prominent.In such a background,the existence of self-defense system is particularly important.However,the court seldom uses the clause of justifiable defense in China's judicial practices,which is due to the fact that the court often regards justifiable defense as mutual assault.The model cases approved by the Supreme People's Court and the precedents of the courts at all levels show that the general reasons for the exclusion of defense by the court include: the parties are considered to revenge for anger and have intentions of mutual assault,the actor has no intention of defense and results in the intentional injury,both parties assault each other on purpose without the condition of justifiable defense and both parties actively prepare tools to harm each other.In these cases,the parties' behavior was defined as mutual assault because they hadn't the intention of justifiable justice subjectively and caused serious consequences objectively.The clause of justifiable defense in judicial practice seldom is used in real life,which indicates that some cases are on the purpose of justifiable defense but they are not defined as defense.The court affirms that the reasons for self-defense usually include the fight-backs of another surprise attack by one side after the cessation of the fighting between the two parties,of getting rid of many people's attack and of preventing from constant and dangerous assault.In above cases,the actor has obvious intention of justifiable defense which is an important factor for the court to determine whether it is a defense or not.The court considers that the reasons for mutual assault include the fight-back based on the intention of attack and the active preparation for the tools to fight.When the behavior of fight-back results in the death of the lawbreaker or the escalating violence of the aggrieved party,the behavior of two parties is more easily defined by the court as mutual assault instead of defense.In other words,in these cases,the court is more likely to regard the behaviors of the two parties as mutual assault.The court holds that,in these cases,the behavior of the actor can not be identified as a defense because of the lacking of a defense intention.The legislative purpose of justifiable defense is to protect the individual rights and maintain the stability of the legal order.The court is tend to affirm the behavior ofthe mutual assault of both parties,which embodies the maintenance of the legal order.But if we overemphasis the maintenance of the legal order,it will lead to a decline in the recognition rate of self-defense,which is not conducive to the protection of individual rights.At the same time,in the case,the courts often take the serious consequences of death into account,take the nature of the hazards of the behavior into account,and is favor of the theory of valuelessness on results when the interests are measured.Over-maintaining the legal order and emphasizing the valuelessness of the results have deviated from the judicial boundary between mutual assault and self-defense.In order to regain the judicial boundary that emphasizes maintaining the stability of the legal order,we must attach importance to the protection of individual rights.We must consider behavioral valuelessness when measuring interest.Only in this way can we increase the recognition rate of self-defense.