The Confirmation Of The System Of Unjustifiable Self-defense

unjustifiable self-defense that decide the defender is to protect the legal rights of law-abiding citizen or harm the criminal of the society,the essence of a crime and is not a crime,therefore unjustifiable self-defense system not only has an important influence for the defense of personal destiny,and for the maintenance of the socialist legal system and consolidate has far-reaching significance.Along with society’s progress and development,China has been constantly promoting and accelerating the construction of harmonious society civilization,in this context,we should correctly understand the system of criminal law the purpose and significance,so as to defend their own legal rights and interests,brave struggle with crime and constantly promote the development of the socialist concept of rule of law.However,in practice,there are some deviations and even misconceptions when judicial personnel define cases of excessive defense.From earlier years blockbuster "dengyujiao case" to recent high-profile "mother in joyous insult" and people clap "hai-ming yu’s murder",in some cases of violation to the criminal offences against the consequences of which cause person casualties,the defender’s behavior can be generally regarded as a crime or can be considered justifiable defense or unjustifiable self-defense,academic circles and judicial practice,and even ordinary people has different views and attitudes.In view of the identification of the fact of unjustifiable self-defense,academic and theoretical circles generally criticize and deny the concept of "consequentialism" in judicial practice,and it is not considered as unjustifiable self-defense if the result of casualties is caused in the process of resisting illegal infringement.In contrast,judicial organs in dealing with the case of unjustifiable self-defense will be identified as the case of intentional crime,and no crime and non-crime,pro-crime or felony distinction.Conflict based on judicial practice and academic theory,in order to more depth and detailed analysis of the judicial organs of motivation,in that unjustifiable self-defense produced in the process of discovery and clarity of the existing problems and shortcomings,the author will adopt empirical research method,collecting the cognizance of unjustifiable self-defense matters related to criminal cases,to that defense in the judicial practice of the typical problems existed in the induction,analysis of its arguments,let everybody can be more comprehensive to clearly unjustifiable self-defense were identified:The first part is the investigation about the present situation of unjustifiable self-defense of judicial practice,the first section introduces unjustifiable self-defense that the theory and practice of the status quo,introduce the basic situation of the selected samples,pointed out that the theoretical circle of unjustifiable self-defense several controversial points,sorting out now in the judicial practice for some problems existed in the cognizance of unjustifiable self-defense,including the sentence "only the result of" trend,the unjustifiable self-defense is widely regarded as intentional crime,be exempted from punishment applicable rate is low and the phenomenon of repeated evaluation problems.Unjustifiable self-defense in the second part analysis of the main causes of the problems in judicial practice,form into the limits of unjustifiable self-defense,and three criterions: a theory of "only the results of the phenomenon is caused by the standard not unified judicial practice practice authorities have no correct understanding" obviously exceeds the limits of necessity and causes great damage "means,for defense behavior;the evaluation of fracture The reason why unjustifiable self-defense is generally regarded as an intentional crime is that the practical departments have a formalized understanding of the intentional crime and a strict understanding of the subjective conditions for the establishment of unjustifiable self-defense.In the aspect of sentencing,the practical department has the psychology of balancing the case,and has not grasped the basis of the punishment reduction and exemption for unjustifiable self-defense.The third part is the key part of the article,that is,the solution of the practical problem of defense over defense.For the defense of the limits of existence,the form and the discretion of punishment,show their views and put forward the improvement opinion,the judicial organs of various factors should be combined with the actual concrete analysis to the case,is engaged in the former point of view,to defense behavior if necessary to stop illegal infringement criteria to define the limits of unjustifiable self-defense,and comprehensive evaluation of the defender’s subjective state of mind,to distinguish between legal and a general sense of intentional,correctly apply punishment breaks,and junction In accordance with the relevant sentencing system to consider,establish a correct judicial awareness,so as to encourage citizens to properly exercise the right of defense.