On The Judgment Standard Of Defense Limit

Article 17 of the 1979 Criminal Code of the People's Republic of China clearly stipulates that “If a legitimate defense exceeds the necessary limit and causes undue harm,it shall bear criminal responsibility,but it shall,where appropriate,reduce or exempt it from punishment”.The revised new Penal Code of 1997 has made a significant amendment to the justification of defense.In addition to adding the special right to defense of Article 20(3),it will also result in the standard of defensive overdue from the original “above the necessary limit.The "damage" was changed to "significantly more damage than necessary." It can be seen that the purpose of the legislative amendment is to relax the standards for the establishment of legitimate defense and to liberalize citizens' right to self-reliance.However,the two criminal laws before and after the revision did not provide specific legal provisions for the "necessary limit",nor did they issue relevant judicial interpretations.Therefore,the problem of delineating the boundary between defense and defensive oversight,that is,the issue of defensive limits,has caused widespread discussion in academic circles and overwhelming judicial practice.Judging from judicial precedents,the standards for judging the limits of defense in judicial practice are too stringent,and it is often assumed that the establishment of excessive defenses beyond the limits of defense can be found everywhere.In the process of refereeing,the results are heavier,especially in cases where an unlawful infringement is caused by serious injury or death.Judges often judge defenders assuming criminal responsibility based on the abstractness of the law and various factors outside the law.This article will use empirical research methods to explain the logic of asking questions,analyzing problems,and solving problems.In this article,the author intends to rationally analyze the status of justification of legitimate defense and defensive practices,and discusses the criteria for defensive limits in judicial practice,and provides reference for judicial and legislative activities.First of all,sort out the current judicial situation and identify the problems by reviewing the status of justification for proper defense and defense:Judicial practice in the current "only result" judgment criteria mainly exists that the understanding oflegislative provisions is not in place leading to follow biased,logical reasoning and judgment path is not scientific,social effects and legal effects are difficult to unify.The proposed new standards should overcome the problems and deficiencies of the old standards,accurately grasp and refine the interpretation of legislative provisions and have a scientific logical reasoning process and judgment path.Second,based on the analysis of the ills of the old standards,the new standards were raised to avoid weaknesses.Finally,after analyzing the advantages and disadvantages of the old and new standards,the author will explore the reasonable standards of defense limits in judicial practice on the basis of drawing on foreign legislation.The author believes that the key to the new standard is to elaborate the explanation that "significantly exceeds the necessary limits and causes undue damage." First,"obviously exceed" should allow defenders to cause more likely results of violations up to two levels of damage.Second,a comprehensive analysis of the judgments of "necessary limits" from the aspects of infringement and defense in accordance with the elements of each crime.Third,the criteria for "significant harm" are defined separately from the two aspects of property defense and personal defense.