A New Theory Of Defense Limit:The Theory Of Legal Interest Upgrading And Protection

Justifiable defense,as one of the reasons for illegal obstruction in criminal law,is very important for protecting citizens’ lives,health and property safety.Therefore,almost all countries in the world have stipulated this system in their criminal laws.Since 1979,China’s criminal law has stipulated legitimate defense,and stipulated the limits of defense,but the system of legitimate defense has not played a very good role in practice.The main problem is that the limits of defense are too strict,and many cases of legitimate defense are finally recognized as excessive defense.Although many studies have been made and several theories have been put forward,such as the theory of basic adaptation,the theory of necessity and the theory of appropriateness,the reality of judicial practice has not been improved.In view of this,in 1997,China revised the previous criminal law and amended the legitimate defense and limitation provisions accordingly.However,the new regulations,which are expected to encourage citizens to fight against violations of laws and crimes in order to protect the safety of life and property,not only fail to solve the existing problems,but also make them more prominent.Judicial practice has formed a consequentialist judgment model,that is,as long as the case of legitimate defense appears serious injury or death of the illegal infringer,the act of the defender is considered to be excessive defense.The main reason is that the criteria for judging whether legitimate defense obviously exceeds the necessary limit are not clear and the theory is confused.Since the implementation of the new law more than 20 years ago,the criteria for judging the limits of defense and related issues are still controversial.Recently,a number of justifiable defense cases have erupted in succession,almost all of which harm the safety of life.The controversy focuses on whether legitimate defense has obviously exceeded the necessary limit.The criteria for judging the limit of defense are still unclear.It is time for the problem to be solved immediately.Taking this as an opportunity,this paper makes an in-depth study on the criteria of defense limits by means of semantic analysis,comparative analysis,empirical analysis and other research methods.Focusing on the provisions of the current legitimate defense law,and on the basis of their analysis and interpretation,this paper also makes a comparative analysis of the provisions of the civil law system and the typical countries of the common law system on the limits of defense and the theory of judging the limits of defense.This paper systematically combs the traditional judgment standards of defense limits in China,points out the shortcomings of legal provisions and traditional theories,and finally puts forward the theory of legal interest upgrade and protection,and constructs a specific criterion to judge whether legitimate defense is excessive,in order to provide operational guidance for judicial practice and provide new ideas for theoretical research.