Research On The Boundary Between Mutual Fighting And Justifiable Defense

Correct cognition of mutual affray plays an important role in the establishment of justifiable defense.Mutual affray and justifiable defense are mutually exclusive,which is not controversial in theory,but in practice,the boundary between mutual affray and justifiable defense is blurred,so that the objective behavior and subjective intention of mutual affray are widely used,and finally the defensive behavior is severely restricted.The identification of mutual affray plays a role of negative certification for justifiable defense,and the increase of negative scope will lead to the limitation of the application scope of justifiable defense.As a result,the cognizance of justifiable defense question not only involves the cognizance of justifiable defense on the one hand,also involves the problem of how to correctly identified fistfight,this paper aimed to melee range narrowed and justifiable defense expanded to,by classification discussion to determine the boundary problem of the right of defense behavior.Only by making clear the two aspects of mutual affray and justifiable defense can we bring the right direction for the application of justifiable defense.The whole text is about 46,000 words.Besides the introduction and conclusion,the main body is divided into four parts:The first part is the existing problems in the identification of the boundaries between fight and defense.The content of this part includes problem sorting and cause analysis.The problem sorting is mainly discussed from the two aspects of the expansion of definition of mutual fight and the excessive limitation of justifiable defense identification.The discussion mainly focuses on the expansion and limitation of fight behavior and fight intention,defense behavior and defense intention.The analysis of the causes of the problems mainly starts from the vacancy of the theory of mutual attack and the application of justifiable defense deformity.The second part is the basic theory research of mutual attack.It mainly involves the multi-angle analysis of the concept of mutual affray,the discussion on the type of mutual affray,and the discussion on the three levels of mutual affray and justifiable defense.The correct meaning of mutual affray is summarized from historical interpretation,literary interpretation and comparative interpretation.The types of mutual fights are shown through the traditional mutual fights,the expected mutual fights and the self-recruited mutual fights.The relationship between beating and defense is distinguished from objective behavior and subjective intention.This shows that in the case of mutual affray,the classification of mutual affray and mutual affray,and the clarification of mutual affray and defense are prerequisite for the correct application of justifiable defense.The third part is the judicial research of justifiable defense.It mainly involves the discussion of the constitutive elements of justifiable defense,including the sorting out of the theoretical disputes on the cause of defense,defense time,defense intention and defense limit,and the identification points in practice.Starting from the theoretical dispute,this paper puts forward that we should adopt the theory of partial affirmation to judge the cause of defense,and the cases that are responsible for the cause are no longer directly regarded as fighting with each other,but partly affirm that there is urgent and realistic unlawful infringement in the cause of responsibility.Defense time may be appropriately extended or advanced under special circumstances in order to better protect the rights and interests of defenders.Mixed subjective standards are adopted for the meaning elements of defense,which no longer pursue the harsh requirements of the meaning of defense.The element of defense limit should adopt the auxiliary application of the principle of modified weapon equivalence and the rule of measuring legal interest.Lists the difficult points of justifiable defense in practice,conducts theoretical research and practical solutions,so as to make a more correct identification of justifiable defense in practice.The fourth part is the correct application of justifiable defense recommendations.Including the application of self-defense in general circumstances and the application of self-defense in special circumstances.The former should be discussed according to the constitution of justifiable defense when it is applied.For the latter,we should pay attention to the suddenness,large degree and changing nature of the escalation of force.On the other hand,the authenticity,thoroughness and expressiveness of the withdrawal from fights should be grasped accurately.In order to play a better role in the application of justifiable defense.