Research On The Judicial Cognizance Of Justifiable Defense

Justifiable defense is an important system of criminal law,and it is of great significance to judicial practice.In reality,there are many problems in the determination of justifiable defense by judicial organs,and it is difficult to identify some cases which should have been recognized as justifiable defense.This paper studies the judicial determination of legitimate defense from the perspective of the criminal guiding cases issued by two high schools,points out the misunderstandings existing in the judicial cognizance of justifiable defense in China,analyzes the causes of these errors and puts forward the corresponding countermeasures.The article is divided into three parts.The first is the misunderstanding of judicial cognizance of legitimate defense.From the point of view of guiding cases,the cases which were ultimately recognized by the court as justifiable defense in the investigation,most of the public prosecution stage were not identified as legitimate defense,which reflects the legitimate defense in the judicial identification of a lot of misunderstandings.The specific performance is that the scope of determination of unlawful infringement is too narrow,the method of defense limit is one-sided,and the identification of special defense is difficult and so on.The second is to analyze the reasons for the misunderstanding of self-defense.The cognizance of self-defense has many problems,not only social reasons,but also subjective reasons.From the point of view of social reasons,the need of social stability makes the judicial organ become a stable institution,and the professional bias of judicial personnel is an important factor.From the subjective point of view,there is a lack of research on the justifiable basis of justifiable defense in the theoretical circles of our country,which leads to the lack of initiative of judicial workers in the application of justifiable defense;Judicial personnel have some wrong ideas in judging self-defense.They often judge defense behavior with the thought of presumption of guilt,and judge the defense limit by the strict criterion of legal interest.The third is the way to eliminate the misunderstanding of judicial cognizance of justifiable defense.From the precondition point of view,including correctly grasp the position of self-defense in the crime constitution system,adopt the hierarchical crime constitution theory,and put the identification of self-defense in the elements of the crime constitution;Correctly positioning the criminal justice,adhering to the principle of legality of crime and punishment,ensuring the independent exercise of procuratorial power and judicial power of the judiciary.From the point of view of concrete methods,the article advocates the use of broad criteria to identify the scope of "ongoing unlawful infringement";the adoption of "modified necessity" and "judgment in acts" in the determination of defense limits;and the scientific identification of special defense.The article gives guidance to the criminal case The rectification effect of the case is cautiously optimistic,and the correction of judicial determination of self-defense should not be solved as soon as a guiding case is issued,which is a gradual and orderly process,and needs to rely on the long-term efforts of the theoretical and practical circles.