The Study On The Limits Of Self-defense

Justifiable defense is the right of defense granted to citizens by law.Since the promulgation of the criminal law in 1979,China's criminal law has been excessively strict with the establishment of justifi.able defense,which causing citizens being too afraid to defend themselves.As a result,the social order was a mess.When the legislators amended the criminal law in 1997,they called for the expansion of the defense right and the relaxation of the establishment of justifiable defense,changing 'causing undue damage beyond the necessary limit' to 'obviously causing signifi cant damage beyond the necessary limit'.And they add term 3,for a violent crime that seriously endangers personal security,the act of defense resulting in the death of the infringer shall not be deemed as excessive defense.In theory and practice,there are disputes about the logical relationship between the obvious excess of the necessary extent and the significant damage.Monists believe that actions and results should be evaluated in a comprehensive way.The dualists believe that actions and results should be evaluated separately,and a behavior-result thinking approach should be adopted.In practice,the positions of monism and even consequentialism and weapons of equivalence have been adopted.In particular,the misunderstanding of term 3,as long as it is not a violent and life-threatening crime,once a defender causes the death of others,the defense is excessive.When judging whether the behavior obviously exceeds the necessary extent,the legal interest is measured,which leads to the conclusion that non-violent crime negates the necessity of defense.Judging from the current judicial situation,many scholars claim that justifiable defense fails to play its due role and has become a zombie clause.Recently,the cases of Yu Huan's intentional injury and Yu Haiming's justifiable defense have aroused heated discussions among the society,and justifiable defense has become a hot topic in the theoretical circle.People begin to rethink how to determine the limits of justifiable defense.This paper attempts to analyze the theoretical and practical views on the defense limit,introduce relevant cases,and draw the judgment steps and methods of the defense limit of justifiable defense,which will be test in Yu Huan's case.The article is divided into five parts.In the first part is about why the question was raised and what is the meaning and logical relationship between 'obviously exceeding the necessary limit' and 'causing significant damage',in term 2 of article 20 of the criminal law.The second part is an overview of the defense limit,which first introduces the uniqueness and superiority of China's provisions on the limit conditions,then introduces the significance and dynamic attributes of the defense limit.The third part is about the relationship between 'obviously exceeds the necessary limit' and'the significant damage',the reason why the paper introduces the relationship first is because that was the premise.This part also in troduces the debate between monism and dualism.Due to the need of human rights protection,normal exercise of the right of defense,and fair and reasonable determination of the crime of excessive defense,it is believed that the thinking direction from behavior to result should be chosen,and the behavior limit should be evaluated separately from the result limit,and the behavior limit should have the priority of independent evaluation.The fourth part focuses on the judgment of the limit of resist and introduces the three traditional identification standards of the necessary extent.To answer some misunderstanding and wrong practices,the part will introduce some real cases and analyses them carefully.Some practical suggestions are offered in this part which are very important.In the part of "obvious" judgment method,the author puts forward the suggestion to offer the behavior range of the defense person and tilt the balance of justice to the defense person when it cannot be clearly distinguished.The fifth part is about the specific application of Yu Huan's case.The above conclusions and methods would be applied in this case to test the feasibility of the rules.