Research On Judicial Determination Of Self-defense

Self defense is the right that the law gives individuals to protect themselves legally.Therefore,self-defense is self-protection,which can also be called self-defense.Judicial cognizance of justifiable defense refers to the judicial activity that the staff of the people's court,people's Procuratorate and relevant functional departments use criminal law and other relevant laws to determine whether justifiable defense is established in criminal cases.The basis of judicial determination of self-defense in China is mainly the constitution of self-defense.There are many theories about the constitution of self-defense: two elements theory,three elements theory,four elements theory and five elements theory,among which the five elements theory can most comprehensively summarize the characteristics and essence of self-defense,so it becomes the basis for the judicial organs to determine self-defense.In China's judicial practice,due to the differences in the concept of judicial determination of self-defense,the pursuit of singleness in the determination of defense intention,restrictions on the conditions of illegal infringement,the judgment of defense limit based on the damage result,the different standards resulting from the judge's discretion,the suppression of judicial determination of self-defense by the order of application of law,etc.,the accuracy of judicial determination of self-defense has been reduced,and many defenses It is difficult for the behavior to be recognized as justifiable defense and bear the criminal responsibility,which causes the public to strongly question the judicial justice.In the judicial recognition of self-defense,judicial staff should refresh the previous judicial recognition concept,re understand the nature and purpose of self-defense,pay attention to the confusion between the defense purpose and the harm purpose,pay attention to the change of the status of all parties in the process of defense,pay attention to the process of the qualitative change of the degree of harm to comprehensively review the case,grasp the overall evaluation of the case,and grasp the provisions of the law Positive factors,using negative factors to regulate unlimited defense,and following the application order of "special defense is prior to general defense" in order to promote the accuracy and justice of judicial determination of self-defense.