On The Judicial Alienation Of China's Legitimate Defense And Its Correction

In order to guarantee the right of citizens to self-defense,China has made relevant provisions on self-defense in the Criminal Law of 1979,and in the 1997 criminal law made changes to the provisions on the proper defense of criminal law in 1979,and the provisions on special defense.From the legislative level to expand the boundaries of citizens ' right to defend,citizens can protect the country,society and their legitimate rights and interests through the right of defense.But in fact,many of the results of judicial practice show that the reality does not have the optimism of legislative imagination,even the establishment of self-defense is more difficult than before,the limit of defense is more severe than before.In many cases involving self-defense in our country,judicial practice has more choices to determine the nature of defense,or even completely deny,and then directly identify the case as intentional injury or intentional homicide,and in more than 10,000 cases where the defense is justified,only more than10 cases have been successful,Is sufficient to demonstrate the position of judicial practice in our country.In addition,China's judicial practice does not determine a sufficiently clear standard of judgment on self-defense,in the specific constituent elements of the issue is still relatively vague,there are judges to hear cases with results-oriented,ignore the nature of behavior,overuse of the "only result theory",so that legitimate defense in the process of judicial determination of serious alienation,The rights of the defenders are constantly being reduced,and the space for exercising legitimate defense is constantly being compressed.At the beginning of the application of the Criminal law in 1997,scholars considered that the provision expanded the scope of the right to use legitimate defense protection,did not make the necessary limits on the limits of defense,and was likely to trigger the risk of abuse of defense rights and the promotion of vigilante retaliation,but the results of judicial practice were a good dispelling of scholars ' concerns.In 87 cases related to self-defense randomly selected by the referee's clerical network,only one court of second instance accepted that the defendant's behavior was self-defense,while the remaining 86 denied that the actor's behavior was of a legitimate defensive nature.In the judicial determination of legitimate defense,China presents many elements of determination outside the legal and regulatory system,and in view of the pre-behavior,the substantive departments will strictly restrict the establishment of the legitimate defense when the defenders foresee the illegal infringement in advance or prepare the tools in advance,and from the conditions of the implementation of the Defense Act,the substantive departments have added a lot For example,when the defense of this avoidance may not use force resistance,the defender in the case of recourse and others cannot take the act of resistance,even when the defender suffered unlawful infringement,if the degree of unlawful infringement is relatively minor and does not belong to the situation of legitimate defense...Through the research,it is found that China has a long historical tradition of the situation of too strict restriction of self-defense and vague provisions,and has obvious performance in Tang law "night without cause",legislation in late Qing Dynasty and legislation in the early period of the Republic of China,and the long history tradition leads to the mechanization and one-sided understanding of legislation in judicial practice.Coupled with the continuous change of social management mode and social demand,many alienations in judicial practice is also reasonable.In comparison,Germany's two-dollar theory and the United States "New Castle Law" have their own understanding of the concept of self-defense,in the determination of self-defense,the United States "New Castle Law" adopted an extremely broad standard of competent determination,Germany has also given the special sentiment to carry out the act of the necessary understanding,Therefore,in the construction of the defense right system will appear in practice to adopt a more relaxed way of understanding,in the fight against crime and the protection of human rights will play a better role.In order to the alienation in the judicial determination of China's legitimate defense,the author advocates the conceptual innovation of the existing judicial practice,one is to rebuild the position of attaching importance to the protection of civil rights in the legislative concept,and secondly,to innovate the judicial technology,to reduce the result-oriented adjudication mode and the refereeing logic,Even in the case of balance of interests,we should pay attention to the protection of the rights of the aggrieved party,and then highlight the intention of the legitimate defense clause.In addition,the author hopes that judicial practice can establish a specific rule for the effective determination of self-defense,and establish a relative standard forself-defense,in order to prevent the practice of relying heavily on the interference of the referee's position.Self-defense is an effective way to fight against criminal acts,we should not only encourage citizens to dare to fight against illegal acts through the perfection of the system of legitimate defense,but also,more importantly,we should arouse citizens ' consciousness of rights through the system of legitimate defense.In judicial practice,we should start to establish a set of special confirmation system,at this stage the emergence of the judicial practice of the wrong concept of legitimate defense is very easy to be put on hold,judicial practitioners should more comprehensive consideration of the specific circumstances of the case,the appropriate expansion of the form of the right to defend the space,which is not only the norms of judicial practice,It is also a necessary part of the protection of human rights.