On "Obviously Exceeding The Necessary Limit" Of Justifiable Defense

Legitimate defense is an important right for our citizens to dare to actively fight against crimes.It plays a decisive role in our criminal law.The first,second and third paragraphs of article 20 of the criminal code of our country provide corresponding provisions for justifiable defense,excessive defense and special defense respectively.Paragraph 2 clearly stipulates the two conditions that constitute excessive defense,but the theoretical circle is vague and has different opinions on how to understand "obviously exceeding the necessary limit",its normative status and how to identify this "necessary limit".The theoretical chaos cannot effectively guide judicial practice,resulting in a situation in which China finds too many cases of excessive defense and too few cases of excessive defense.As a result,some scholars claim that "justifiable defense will become the Jiangshi Clause".In recent years,criminal cases involving justifiable defense,such as Deng Yujiao's case,Yu Huan's case,Kunshan's anti-murder case,and Zhao Yu's courageous acts,have attracted wide public attention.As well as the 12 th batch of guiding cases on justifiable defenseissuedby the Supreme People's Procuratorate,a wave of academic discussions is coming up to re-examine the justifiable defense system.Therefore,the author believes that it is necessary to re-study the justifiable defense system,especially the defense limit.In addition to the introduction,this article is divided into four parts: the first part mainly introduces the basic facts of the case,the focus of the dispute,and puts forward the issues to be discussed in this article;The second and third parts introduce the relevant theories of defense limits in China and the countries of the two legal systems.The fourth part makes a comprehensive analysis from three aspects: the justification basis of justifiable defense,the relationship between the behavior limit and the result limit,and the judgment perspective of the necessary limit,and proposes that China should adopt the judgment perspective of "situational theory" when judging whether the defense behavior is excessive,and should make a comprehensive analysis combining with some objective factors on the basis of adhering to the "effective theory of minimum intensity".