Judicial Cognizance Of Excessive Defense

From "yu huan case" to "yu haiming justifiable defense case" to the recent "hebei laiyuan home invasion anti-murder case",the judicial determination of justifiable defense and excessive defense has gradually come into the public's view,and become one of the hot issues that people continue to pay attention to.In this context,the writing of this paper is of great social value.From the perspective of the identification of excessive defense,this paper analyzes the theoretical basis behind the phenomenon of "results-only" in judicial practice,points out the problems in the identification of"results-only behavior" in judicial practice,and points out the irrationality in the subjective identification of excessive defense.Therefore,in order to change the ambiguity of the identification of excessive defense in judicial practice,the justification basis should adopt the proposition of "confirmation of legal order and protection of legal interests".The objective criterion of excessive defense stipulated in the second paragraph of article 20 of the criminal law2 is understood as two concurrent establishment requirements.The determination of "necessary limit" should take the opinion of "necessary theory";The judgment of "significant damage" should be made clear according to the circumstances and considered from two aspects:quality and quantity.For the judicial judges of defense cases,they should take the Angle of defense person and measure it comprehensively according to the standard of behavior of people in the same situation.For the subjective fault of excessive defense,the claim of indirect intentional doctrine should be adopted to conform to the common practice in current judicial practice.In addition to the introduction,this paper is divided into four parts.The specific contents are as follows:The first part mainly analyzes the current situation of judicial practice and points out the existing problems.Taking 300 cases of excessive defense as samples,this paper uses the typification method to conduct quantitative analysis.Taking the overview of the current situation of judicial identification and its concrete development as the logical line,the paper makes an empirical analysis of the defense overreaction from the three aspects of result overreaction,behavior overreaction and subjective fault through the sample data,so as to conclude the problems existing in the identification of defense overreaction in judicial practice.The second part will mainly study the illegal basis of excessive defense.The"lawlessness" of excessive defense is closely related to the basis of justification,and the difference of the standpoint of justification will directly affect the determination of the necessary limit.This part explains the foothold of this paper by analyzing the relevant theories of justification.The third part is the more important part of this paper,this part will be aimed at the defense of the objective identification of the problem of rationalization proposals.From the three aspects of the relationship between the necessary limit and the major damage,the selection of the doctrine of the necessary limit and the definition of the major damage,the author analyzes the hu anhua case in the introduction in combination with the aforementioned views recognized by the author.The fourth part is the subjective determination of excessive defense.Through the brief explanation and analysis of the related theories on the form of subjective fault of defense,the author determines the theory of fault advocated in this paper,so as to solve the dilemma that the theory is seriously separated from practice.