On The Boundary Between Mutual Assault And Justifiable Defense

Justifiable defense is one of the reasons for statutory violations.It should have played an active role,but the application of justifiable defense is not optimistic.It is even called a zombie clause.The purpose of setting up this system is largely unrealized.Of course,this is the result of the combination of many factors.Among them,it is particularly worth noting that the improper identification of mutual enthusiasm greatly excludes the existence space of justifiable defense.That is to say,the behavior of being in a state of oppositional struggle is a justifiable defense or mutual enthusiasm,and there are problems in the criteria for its adoption,which in turn leads to justifiable defense falling into a quagmire of mutual enthusiasm.Based on this article,we focus on the criteria for the boundary between mutual defense and justifiable defense.By starting with the definition of standards used in judicial practice to identify mutual and justifiable defenses,the problems existing in the analysis of the boundary standards and the inability of the theory can not be justifiable.And on this basis,re-establish the criteria for the identification of mutual defense and justifiable defense,in order to clarify whether the behaviors in the opposite fight against each other are mutual or justifiable defense,and the justifiable defenses are salvaged from the quagmire of mutual enthusiasm to remove the pollution.Its true color.This article is divided into five parts:The first part is the basic theory of justifiable defense.The discussion of theory provides basic support for the development of the problem.Specifically,based on the justification of justifiable defense,based on the analysis of relevant theoretical basis,this paper chooses the position of legal interest measurement;for the defense intention,this article must be said to defend the intention,and its content is defended.Knowing and adding on the basis of the content of eliminating the meaning of positive harm;for the interpretation of the path of mutual exclusion and justifiable defense,chose to exclude the intention of defense.The second part is the analysis of the problems and their causes of the current identification criteria for distinguishing between mutual asssult and justifiable defense.In this paper,the behaviors in the state of oppositional struggle in practice are determined to be mutual or justifiable defense.The five types of elements used in the analysis are analyzed,that is,the dispute is the mutual conflict,and the foresight is still stuck.Having room for maneuver and actively countering the denial of justifiable defense,foreseeing the infringement preparation tool,denying the defense intention,and improperly restricting the preconditions of justifiable defense,after analyzing the above criteria are unreasonable,not only contrary to the theory,but also the logic can not be self-contained.It continues to analyze the objective and subjective reasons for adopting such a distinction between standards in practice.The third part is a discussion of the need to re-establish the distinction between mutual asssult and justifiable defense standards.The justifiable defense system is one of the reasons for statutory violations.Its importance is not only reflected in the decision to establish a crime,but also in the case of a crime,if it can be determined that the act is defensive,it can also receive preferential treatment.Such an important justifiable defense,in the issue of the standard of separation and mutual discrimination,is not only a problem in the judicial practice,but also a problem in the theory of criminal law theory.It is necessary to provide guidance for practice and to re-establish the definition of mutual defense and justifiable defense.The fourth part is the construction of normative standards for distinguishing mutual asssult and justifiable defense under normal circumstances.The general situation here refers to a fight without prior agreement,and the normative standard refers to the intention of defense,the intention of fighting,and so on.Then,in this case,the distinction between mutual asssult and justifiable defense,this paper constructs two standards: one of the standards,examines the sequence of hands-on,and affirms the unlawful infringement of the first-handers,and then affirms the timely counter-attack behavior of the hands-on Defence;the second standard,counterattack based on the intention of fighting in advance,is definitely mutual.This kind of prior intention of fighting is a kind of positive harm and attack.The counterattack behavior based on this intention is essentially the same as the simple attack behavior,so the defense intention is denied.In addition,it is also necessary to pay attention to the issue of intentional continuation of the fight.If the intention of fighting is eliminated after the counterattack is carried out,there is still room for justifiable defense.The fifth part is the application of the principle of measuring the differences between the boundaries of decentralization and justifiable defense in special circumstances.The special situation here refers to the advancement or detention of the infringement in advance.In this case,the counter-attack in the face of unlawful infringement is the judgment of establishing mutual deficiencies or justifiable defense.If the above-mentioned standards of fighting intentions and defense intentions are adopted,there are obstacles,which leads to the justification of justifiable defense.The application of this policy standard is measured by legal interest.After the validity of the legality and rationality of the application of the policy standard of the principle of legal benefit,the specific application of the legal benefit measurement as a criterion for mutual defense and justifiable defense is filled with the probabilities of foresight and counter-attack.The importance,the possibility of avoidance,and the legitimacy at the scene,through the consideration of the above factors,make the measurement of legal benefits accurate and differentiated.