An Analysis Of The Controversial Elements Of The Legitimate Defense System And Its Appropriate Use

In recent years,with the emergence of such hot cases as "Yu Huan case","Kunshan machete case","Zhao Yu case","Laiyuan Anti-killing case" and "Fujian Dong Mou Jia Anti-killing case",the legitimate defense system has become the object of hot discussion.Around the constituent elements of self-defense,a lot of academic,practical discussions,resulting in a large number of views and ideas.The reason for the hot discussion is that the system has not been applied accurately in practice.As far as the judicial practice is concerned,because the judicial decision is too cautious or too strict,the original defensive behavior is judged to be undefensive,and even the defensive act is regarded as a intentional crime.However,our legislation has been relatively perfect,even more than some western developed countries.We cannot help but wonder why the self-defense system is so difficult to apply.As we all know,from the legislation to the judiciary is a dynamic process,the judicial decision is not a rigid copy of the law,but must have an accurate understanding of every detail of the case,and then the conduct of the identification.How to understand and apply the law has become the key to solve the problem.By using the methods of literature analysis,comparative analysis,empirical analysis and so on,combined with the relevant research situation in China and abroad,this paper tries to re-explore the system in order to form a clear and feasible way of thinking and method.So that the system can be applied accurately.The first chapter is to analyze the facts of the justifiable defense system in the case of Yu Huan by introducing the facts of the case,and combining with the first instance and the second instance judgment,and sorting out the case of the first instance of the case in detail.The focus of the dispute in the second instance is to sum up the controversial elements of the legitimate defense system.The second chapter analyzes the controversial elements of legitimate defense system one by one,which includes illegal infringement,defense time,necessary limits and improper facts.The first section mainly analyzes some controversial cases of unlawful infringement,the second section mainly discusses the time of defense and other difficult problems related to it.The third section is to the necessary limits of the existence of the basic point of view has been combed,and on this basis summed up the idea of identification;The fourth section takes the theoretical foundation as the starting point,discusses the improper fact,analyzes the guilty form of the improper fact,the sentencing standard and the circumstances that should be excluded.The third chapter is about how to correct the judicial practice of self-defense system.Firstly,it analyzes the current situation of the judicial practice of the legitimate defense system,and analyzes the reasons for it.Secondly,it puts forward the countermeasures to solve the problems.