Research On The Judicial Determination Of The Justifiable Defense Limit

Article 20 of the Criminal Law of China stipulates that legitimate defense means that for the sake of interests of state or public,safety,property and other rights of self or others from ongoing unlawful infringement,it is necessary to adopt the methods of causing or possibly causing damage to the unlawful infringer and stop the illegal infringement.Although legitimate defense conforms to some elements of crime in form,it essentially protects the superior legal interests of the same persons,and does not have the infringement of legal interests.It belongs to the legal reason of illegal obstruction.Establishment of legitimate defense usually needs to meet the following requirements: first,there must be a realistic illegal violation;second,illegal violation must be ongoing and urgent;third,there must be a sense of defense,including defense awareness and defensive will;fourth,we must defend against the unlawful infringer himself;fifth,we must defend against the illegal infringer himself;It must not cause significant damage beyond the necessary limits.There are different opinions and practices at home and abroad on the limits of defense.In the civil law system,"necessity" and "equivalence" are emphasized.The Japanese Criminal Law stipulates justifiable defense as a kind of "forced" behavior,that is to say,the way with the least degree of damage should be chosen to defend within a certain range.The current German Criminal Code stipulates that legitimate defense is a necessary defense.The defensive act is not only required to be effective,but also a means of minimizing the harm to the unlawful infringer must be chosen from many defensive means.Anglo-American law system mostly advocates "subjective theory",focusing on the subjective judgment of the defender as the standard.As long as the defender has subjective reasons to believe that the defensive act is reasonable,it does not belong to excessive defense.There are also different standpoints in the theoretical circle of criminal law in our country,which can be roughly divided into three theories: "basic adaptation theory","objective need theory" and "compromise theory".Among them,"eclecticism" is the mainstream theory in the field of criminal law in China.The viewpoint combines the main content of the theory of "basic compatibility" and "objective need",and holds that the defense limit is in principle the necessary limit to effectively stop illegal infringement,but also requires that the Defense Act and illegal infringement act should be roughly equivalent in intensity,means,nature and other factors,and not too different.Through the sample statistics of justifiable defense judgments in our country,we can find that the judicial organs are prone to the following problems when grasping the defense limit: first,there are deviations in understanding the defense limit,specifically,a split evaluation of defense behavior;excessive attention to defense results,once casualties occur.It is easy to be judged as excessive defense,neglecting the particularity of defense under the condition of continuous infringement.The "compromise theory",which is generally praised by academia,inspects the factors of defense results together when defining the necessary limits,and inspects the factors of result twice when judging the limits of result,which not only destroys the juxtaposition relationship between "obviously beyond the necessary limits" and "causing significant damage",but also causes the factors of result to be subjected to.Repeated evaluation makes the influence of defense outcome factors enlarged unjustifiably.This incorrect understanding of the limits of defense is an important factor leading to the prevalence of the "consequentialist" mode of judgment in judicial practice.Secondly,the applicable standards of defense limits are not uniform.In practice,judicial organs have great difficulties in judging the limits of defense.The description of defense limit in criminal law is very general and abstract.It does not give a unified and specific applicable standard.In addition,real cases are often rooted in errors.It is difficult to draw a definite conclusion only by referring to the legislative provisions,which makes it quite difficult for judicial organs to identify the defense limit in specific cases.Thirdly,judicial organs are vulnerable to external interference.Since ancient times,the concepts of "killing for life" and "tooth for tooth" have been deeply rooted in our country.If there are protective consequences of casualties in a case,the family members of the victims usually exert pressure on the judicial organs through the way of expanding the influence of the case through the network and the media,and strongly demand that the defendant be punished severely.In order to appease the emotions of family members,ensure the smooth operation of the court's work order and pursue good social effects,judicial organs have to strictly define the limits of defense.In order to solve the above problems in judicial practice,first of all,the judicial organs should correctly understand the essence of the defense limit,and thoroughly analyze the meaning of "obviously beyond","necessary limit" and "significant damage".Secondly,judicial organs should adjust the judgment perspective and methods of defense limits.We should clarify the parallel relationship between "obviously beyond the necessary limit" and "causing significant damage",and abandon the thinking path of "consequentialism" based on the judgment perspective of behavior.Thirdly,our country should strengthen the guidance of the applicable standards of defense limits,formulate and improve more judicial interpretations,expand guiding cases,and refine the applicable standards of defense limits.Finally,judicial organs should establish a correct concept of rule of law,improve judicial trial ability,properly handle the relationship between social and legal effects.