A Study On Unjustifiable Defense In "Yu Huan Case"

In recent years,the issue of excessive defense has become a controversial issue in academia and practice once again.There are mainly two controversial issues,namely,the determination of excessive defense limits and the judgment of the form of excessive defense responsibility.Excessive defense plays a special role in the criminal law system.On the one hand,there are some elements of justifiable defense which constitute illegal obstruction,on the other hand,there are illegal attributes of crime.This leads to the problems of unclear boundaries and unclear system positioning in the application of excessive defense.Yu Huan is a representative case of such problems.The result of the first trial of Yu Huan case misjudged the nature of the defensive act,and concluded that Yu Huan's act did not have the sense of legitimate defense,thus the case was directly defined as the crime of willful an malicious injury.The court of second instance corrected the first instance.The object of this paper is to study the three main points of judgment related to the second instance,in turn,how to recognize the nature of defense,how to determine whether the defensive act is excessive,and what forms of responsibility for excessive defense.On judging whether an act is defensive or not.First of all,we need to compare the similarities and differences between justifiable defense and excessive defense.The former is essentially legitimate or illegal obstruction,while the latter is illegal.In view of the fact that excessive defense in normative law is generally evolved from legitimate defense,the nature of defensive behavior can be judged mainly by means of the constitutive elements of justifiable defense,namely,the cause of defense and the time of defense.Yu Huan's behavior is defensive.On how to judge whether the defensive act is excessive.There are differences between the theory of necessity,the theory of basic adaptation and the theory of equivalence.After summarizing the above disputes,it is concluded that the "inclusive theory" emphasizes either one or the other,while the "juxtaposition theory" emphasizes the dualism of coexistence.Because of the defect of "inclusive theory",the theory of "juxtaposition theory" should be adopted to reconstruct the standard of defense limits.In principle,we should not only pay attention to the measurement of the damage to the method interests caused by the infringer and the defender respectively,but also consider that the defender's counterattack is necessary to stop the illegal infringement,that is,the legitimate defense should give priority to maximizing the protection of the interests of the defender and to minimize the damage to the interests of the infringer.On the whole,Yu Huan's defensive behavior should be evaluated as excessive defense.On the form of responsibility for excessive defence.Firstly,it should be made clear that the defense responsibility not only has the function of establishing crime,but also has the function of establishing specific types of crime in the criminal law system.The sense of defense does not necessarily exist,and the responsibility of excessive defense should be judged according to individual cases.As long as the actor knows the result of excessive defense,he wishes to let the result of excessive defense occur intentionally;if the result of excessive defense is only negligent,negligent defense will be established.Specifically,if the defender has defensive consciousness and objectively acts too defensively,it should be recognized as negligence and established intentionally under special circumstances.Yu Huan's defensive consciousness and criminal intention can coexist in the process of defense,which does not hinder the identification of the responsibility form of excessive defense as intentional.Finally,the case brings enlightenment to the theory and method of judicial application of excessive defense.In the application theory,focusing on "serious consequences" while ignoring the attributes of the behavior,and the thinking mode tending to be stable lead to "consequentialism" in the judicial application.The method of legal interest measurement should be combined with the comprehensive judgement of "necessity".In terms of applicable methods,in view of the many drawbacks of the four elements crime theory system,it is appropriate to establish the value status of the hierarchical crime theory system and rebuild the judgment method of excessive defense on this basis.