Research On The Judicial Determination Standard Of Unlawful Infringement In Justifiable Defense

As an ancient legal system,justifiable defense system plays an important role in China's criminal law.It encourages citizens to use private remedy to effectively stop illegal infringement.It not only provides a legitimate basis for all kinds of behaviors caused by unlawful infringement,but also ACTS as a deterrent to potential wrongdoers.The source of legitimacy is directly determined by the necessary premise of legitimate defense unlawful infringement.Undoubtedly,without the existence of unlawful infringement,there would be no soil for the existence of justifiable defense system.Therefore,when we study justifiable defense,we must take unlawful infringement as the logical starting point.In specific cases,we can only further consider whether the counterattack by the infringed can be evaluated as justifiable defense if we first determine whether there is an unlawful infringement that can be carried out in the case.The regulation of our country existing legislation on illegal violation is not much,only made provisions for illegal violation of criminal law,in violation of the criminal law as the violation "ongoing",because the expression is too simple,some specific aspects to specification,the judicial practice difficult,this virtually increases the judicial practice of the difference of unlawful infringement cognizance caused a lot of public opinion is a climax of related judicial precedent then can confirm this.This article follows the research of the criminal law practice,in order to attract the "public opinion" judicial cases as the main material are discussed,through analyzing the judicial precedent,found in current judicial practice of unlawful infringement cognizance of alienation phenomenon,with the help of relevant criminal law theory,explore the causes of alienation,to be summarized and the standard of according to current situation of alienation,for your reference.The full text includes the conclusion altogether has six parts.The first part is the introduction,which mainly introduces the research status of illegal infringement at home and abroad,the existing problems in the existing research and the ideas to solve the problems.In the second part,by summarizing the alienated status quo of the determination of unlawful infringement in the judgment of relevant cases on the Chinese online judgment documents,it is concluded that the current differences in the determination of unlawful infringement in judicial practice mainly focus on the determination of the scope of unlawful infringement and the "ongoing" understanding.The third part mainly analyzes the reasons for the alienation of the existence of illegal infringement,laying a foundation for the following part.The fourth part mainly combines the problems mentioned above with the reasons,builds a framework for the determination of unlawful infringement according to the existing theories,and then sums up a set of standards for some phenomena and problems with large differences in the identification in practice.The fifth part is a reverse application of the proposed standard to verify the feasibility of the standard.