Study On The Determination Of Justifiable Defense In The Situation Of Continuous Unlawful Infringement

Compared with general unlawful infringement,continuous unlawful infringement has the characteristics of continuous infringement,coexistence of several infringement acts,persistent existence of dangerous state caused by the overlapping infringement acts,and accumulation and increase of dangerous state caused by the overlapping infringement acts,including both illegal acts and illegal state.In the determination of justifiable defense,there is a wrong method that only mechanically measures the interests in judicial practice.As long as the damage result of defense is “greater than” the protected legal interest,it is often found that the defense exceeds the necessary limit and a conclusion of guilt is drawn.The constitution of justifiable defense is different from the general situation in the case of continuous unlawful infringement.From the point of view of defense purpose,the deficiency or flaw of defense purpose does not prevent the establishment of justifiable defense.From the point of view of defense purpose,the deficiency or flaw of defense purpose does not prevent the establishment of justifiable defense.In terms of defense time,as long as there is a real danger of the unlawful infringement,it shall be deemed that the unlawful infringement is ongoing,rather than that the unlawful infringement has not started or ended just because the unlawful infringement has not been imposed on the victim or the unlawful infringement has been completed.At the same time,based on the overlapping characteristic of the continuous unlawful infringement,the continuous unlawful infringement should be considered as a whole.The temporary suspension of the infringement does not mean the end of the illegal infringement.In terms of defense limit,whether the defense limit obviously exceeds the necessary limit has a logical priority in judgment,while significant damage only refers to the consequences of serious injury or above,which plays a supplementary role in judgment for the former.Therefore,in this case,to evaluate whether the defense is excessive,first of all,it is necessary to affirm the impact of continuous and overlapping aggression on the defense person's psychology,and it is essential not to impose strict requirements on the defense person.Secondly,based on the accumulation of a number of violations and the increase in the degree of danger,special defense can be established when the degree of violence or danger of unlawful infringement rises to a level that seriously endangers personal safety.Finally,it is necessary to clarify the logical relationship between the obvious excess of the necessary limit and the significant damage,and comprehensively consider the nature,means and time of the continuous unlawful infringement as a whole combined with the behaviors of both parties.