Alienation And Return Of The "Legitimate Defense" System In The Discourse Of Rule Of Law In China

The legitimate defense system,as a traditional classic criminal law system theory,aims at encouraging citizens to fight against unlawful infringement of human rights and interests,and its system value is worthy of recognition in China.This article first raises two questions by studying the justified defense discourse in the referee judgement and news reports.The first is why China 's judicial practice tends to be too restrictive in its determination of justified defense,even after the 1997 Criminal Law was amended.It is why there is a huge difference between the official and non-governmental discourses of legitimate defense in China.The official discourses impose a series of stringent requirements on the identification of legitimate defenses,and folk discourses are mostly understood from ethical words such as fairness and justice.Next,I examined the origin of the discourse of justification in the West and compared the differences in the discourse of justification between later countries in the Anglo-American legal system and the countries of the civil law system.The original source of the justification system in Western countries was France,which was influenced by the Enlightenment.Common law countries and civil law countries have different criminal law concepts,different national development trends,and different legal systems.The rules are gradually different.Because common law countries are case law systems,they have a brief definition of proper defense and institutional regulations.Departments generally have detailed regulations.The third part sorts out the origin of thought and the evolution of the expression of legitimate defense in ancient China.At the same time,it reviews the changes in the application of legitimate defense since the founding of the People's Republic of China.It is found that the legitimate defense system in China's current criminal law is not a defense that has spontaneously formed in ancient China.The system was introduced from the West when learning from the West in the late Qing Dynasty.After the founding of the People's Republic of China,it inherited the regulations on justifiable defenses from the late Qing Dynasty,and made a lot of legal defenses in the 1997 Criminal Law.Changes,and later introduced a series of judicial interpretations and other measures to improve the standard of defense and the applicable standards of discourse,but did not produce the expected positive effect.This leads to the third alienation of legitimate defense in this article,which is the alienation of the current legitimate defense system and the ancient Chinese defense-related legal ideas.The three major causes of alienation include four reasons.First,there are shortcomings in the construction of legal doctrine in our country.It has always been a result-oriented tendency and centered on law.The second is the influence of the traditional Chinese concept of stability and priority.The view of life and death and practical rational thinking,the third is that it is incompatible with the legitimate defense system of the West and copied to our country,which causes it to be incompatible with our country's judicial refereeing system whose main purpose is dispute resolution.Shock.The legitimate defense system must return from the perspective of discourse,and the role of legal rhetoric and discourse has not been given enough attention in our country.Specifically,one is to return it to its origin in legislative discourse,and the other is to guide justice through legal rhetoric.The gradual unification of refereeing standards,the third is to change the rhetorical methods in the referee documents to guide the public,and the fourth is to lead the public opinion through the role of mass media,to popularize the legitimate defense system to the public.It is hoped that these suggestions will be conducive to the accurate return of the legitimate defense system and give new vitality to the environment of the rule of law in China.It is also hoped that by combing the legitimate defense system,it will contribute a modest force to the construction of a socialist discourse system of the rule of law with Chinese characteristics.