Research On Unjustifiable-defense Damage Responsibility Disputes Lawsuit

Unjustifiable-defense damage responsibility disputes lawsuit is a common type of litigation in judicial practice.At present,there are few scholars and practical departments to study unjustifiable self-defense from procedure law and civil law,and fewer systematic discussions about the unjustifiable-defense damage responsibility disputes lawsuit.Based on this,this paper is to systematically discuss the unjustifiable-defense damage responsibility disputes lawsuit from the substantive law to the procedural law in four chapters.The first chapter mainly discusses the judicial status quo of the unjustifiable-defense damage responsibility disputes lawsuit.This chapter makes statistics on judicial practice,and introduces typical cases to find out the existing problems of the unjustifiable-defense damage responsibility disputes lawsuit in substantive law and procedural law.In substantive law,there is no definite definition of unjustifiable self-defense in civil law,especially there is no explicit stipulation on the necessary limits of justifiable defense in civil law.There are neither specific provisions nor principles.Therefore,the judge has no clear basis to apply the justifiable defense in civil law,which leads to the different judgment of the same case,which affects the unity and authority of the judgment.In addition,unjustifiable self-defense in civil law may affect the purpose of the unjustifiable self-defense in the criminal law.Finally,the legislative mode of the unjustifiable self-defense will have a negative effect on the relief of the object of trial or legal liability and victim's interest.In procedural law,the unjustifiable-defense damage responsibility disputes lawsuitsare cross cases.There are many problems like the legislative conflict and imbalance in the application of the criminal law and civil law.This may cause the problem like judicial resources waste and also may increase the burden of the court.The second chapter carries out the research on unjustifiable self-defense in the substantive law.This chapter mainly makes the distinction between unjustifiable self-defense in civil law and criminal law and analyzes the difference between them from the aspects of nature,legislative purpose and constitutive elements.And then this paper collates several relations of unjustifiable self-defense between civil law and criminal law.Thus,the concept of "unjustifiable self-defense in criminal law" and "unjustifiable self-defense in civil law" are obtained.Unjustifiable self-defense in criminal law is a behavior that the defender's performance causes excessive necessary-limit distinctly and makes major damage.Unjustifiable self-defense in civil law is a behavior that the defender's performance causes excessive necessary-limit and makes damages,but not causes excessive necessary-limit distinctly and makes major damage.The defender should be responsible for only civil liability.The degree element of Unjustifiable Self-defense is the key to distinguish it from Justifiable Self-defense.So this paper focuses on this part,so as to distinguish the concept of“unjustifiable self-defense in criminal law” and “unjustifiable self-defense in civil law”.The third chapter carries out the research on unjustifiable self-defense in the procedural law.This chapter focuses on the procedural procedure of “unjustifiable self-defense in criminal law”.This chapter carries out the research on the jurisdiction of the litigation,the preconditions of the civil litigation,proof of responsibility and standard of proof under different proceedings.In regard to jurisdiction,during the penal litigation with civil incidental,“unjustifiable self-defense in criminal law” is governed by criminal courts.If a civil action is instituted after a criminal decision,it will still be governed by the criminal court.For the pre-conditions of litigation,“unjustifiable self-defense in criminal law” should make criminal judgment as the pre-condition,but can be settled by the mediation before judgment.Moreover,the burden of proof and the standard of proof should be strictly differentiated and applied to different standards in criminal procedure.In this case,the criminal part of the relevant defense shall be in accordance with the criminal standards,and the civil part of the damages shall be in accordance with the civil standards.It also analyzes the possible problems about cross cases such as the conflict of the sentence.The fourth chapter offer proposals on the problems existing in the doctrines of the unjustifiable self-defense from the substantive law and the procedural law.In substantive law,the regulation should be clear and fill in gaps about unjustifiable self-defense in civil law.The inheritance of unjustifiable self-defense in criminal law should be selective to deal with the difference between civil law and criminal law on unjustifiable self-defense.In procedural law,it should correctly understand the applicable rules of conflict of laws,stipulate clearly the jurisdiction of civil cases caused by crimes,and exclusively judge people's Courts about criminal cases.It should be solved the problems in the unjustifiable-defense damage responsibility disputes lawsuit from all aspects.