Research On The Issue In The Judicature Recognization Of Legitimate Defense

The purpose of setting up justifiable defense system in criminal legislation is to encourage "lawful confrontation against illegality",which not only protects rights and interests from further infringement,but also realize the general prevention of crime.However,the judicial practice of justifiable defense features narrow in its application,which show that the doubtful correct rate of determination and inadequate reasoning of the referee still exist.From the point of view of defendants,justifiable defense tends to be an excuse for crimes and even a "legal coat",which is far different from the original intention of justifiable defense.It is studied that the reasons are the improper influence of subjective ideas and the limitation of objective conditions in the judicial cognizance of justifiable defense.Specifically,based on the background of passive justice,when the judge verifies the evidence of justifiable defence,he still relies on the clues provided by the defendant,which makes the whole situation relative passive.In addition,the result-oriented judgment theory and the simple justice view held by the defense side,the victim and even the public have unduly confused the relationship between defense intention and the right of legitimate defense,illegal infringement and provocative behavior.The judge is confronted with many conceptual obstacles because he/she first determines the absence of defense and then denies that the subsequent act constitutes legitimate defense.In the objective aspect,there are many disputes on whether the defense intention should be retained,whether the defense limit standard is single or mixed,moreover,the judicial practice has not formed a consistent approach to the defense and harmunder the mixed situation of defense intention and aggravating intention,lack of corresponding legislative support and featuring casual.More importantly,there are obvious differences between theory and judicial practice in the meaning of defense and limitation of defense,which aggravates the uncertainty of judicial adjudication standards.In addition,the order of the articles on justifiable defence under the existing criminal law also aggravates the tendency of the judges to deny the establishment of justifiable defence,ignoring the principle that the danger accumulates and the special justifiable defence precedes the general justifiable defence.As for the dilemma and limitation in the judicial determination of justifiable defence,it is necessary to actively change the traditional judgment concept,"result-oriented",and to clarify the essence that justifiable defence is the judgment whether a defensive act should be convicted.By combining the mixed situation of defensive intention and aggravating intention,the change of status in the defensive process,and the development of illegal infringement,this paper makes a dynamic evaluation on defensive behavior.Then based on above materials,in the legislative framework,the establishment conditions of fuzzy justifiable defense emphasize the meaning of defense in positive view,however it excludes the obvious intention of aggravating harm,defense implementation after illegal infringement,the serious inconsistency between the means and tools adopted and the illegal infringement emergency and other situations that should not be recognized as justifiable defense in reverse.Then a prescribed mode of "overall identification and individual exclusion" is established.As for the order of articles,the article order of "special justifiable defense-general justifiable defense-excessive defense" should be set up to weaken the improper influence of "consequentialism".In the aspect of litigation assistance,by establishing the rule of proof,the strengthening of multi-link precise adjudication,the introduction of special guiding cases and the strict implementation of the people's jury system,we should gradually close the distance between judicial adjudication and the public,so as to ensure that the justifiable defense adjudication is based on the legal provisions,focuses on the people and social effect,moreover,real examples and lessonscan be referred,which is the effective way to give full play to the proper function of justifiable defense.