Study On The Judicial Application Of The Criteria For Determining Over-Defence

All the time,there are cases of excessive defense often cause concern from all walks of life.From the "Deng Yujiao" case in 2009 to the "Yu Huan case" in 2016,whether it was self-defense or defense.The views of judicial organs,theoretical circles and ordinary people often differ.Article 20,paragraph 2,of the Criminal Law of China only stipulates that "if legitimate defense obviously exceeds the necessary limit and causes major damage,it shall bear criminal responsibility." There is no clear definition of the judgment standard of defense and no relevant judicial interpretation.Scholars draw different conclusions based on the different justification grounds that may define the limits of defense over power.How to understand "obviously exceeding the necessary limits" and "major damage" is one of the problems that urgently need to be solved.There is no uniform standard which affirm the excessive defence,this situation leads to confusion in the judicial application of excessive defence.Starting from the case of judicial practice in this paper,the author emphatically discusses the specific standards of excessive defence in judicial practice and puts forward his own views and suggestions.This article is divided into five parts:The first part,This part mainly makes a brief introduction to the current academic research status.In addition,a sample analysis is made on the cases of excessive defense in judicial practice.This leads to the judicial practice about the problems of excessive defense.The second part,the analysis of the standard of excessive defense.It is divided into three aspects: The first aspect is mainly an overview of the concept of over-defence,including the concept of over-defence and the criteria for determining the current over-defence;The second aspect mainly describes the current judicial practice on the problems of over-existence of defense,including the unclear"necessary limit" boundary,the unclear definition of "major damage",and the "theory of results"."The tendency is serious;The third aspect analyzes the causes of the above problems and puts forward two reasons,including the lack of clarity in the provisions of the law and the use of damage results as a criterion.The third part,it is the core content of this article to specify the standard of excessive defense.These include the concretization of the "necessary limit" standard,the concretization of the "significant damage" standard,and the relationship between "obviously beyond the threshold of necessity" and "significant harm." In the concretization of the "necessary limit" standard,based on the discussion of theoretical differences,the factors that should be considered in judging the "necessary limit" are put forward,and several more explicit concrete standards are proposed.In the concretization of the criterion of "significant harm",the concretization criterion including the person's significant harm and the result of significant harm is proposed.The fourth part,based on the two typical cases in judicial practice,"Yuanwei's intentional injury case" and "Sunzhongzhi's intentional injury case",analyzes the basic case and extracts the original judgment for the determination of defense.On this basis,Substituting the previously proposed concrete standards into the analysis and draw conclusions.The fifth part,conclusion.This part makes an appropriate summary and put forward prospects.