Research On The Judicial Cognizance Of The Limit Of Justifiable Defense

Since the beginning of the establishment of the justifiable defense system,it has received much favor from the theoretical and practical circles of criminal law.In the long history of exploring the system,the debate on the limit of defense is enduring.This article consists of three chapters,aiming to discuss the problems in the judicial determination of legitimate defense limits and put forward countermeasures to solve the related problems.The first chapter selects three hot cases in recent years,namely the "Yu Huan case","Wang Lang case" and "Yu Haiming case".By analyzing the main points of the judgment and the focus of disputes,it summarizes the three possible aspects of the judicial determination of legitimate defense limits The problem:result-only theory,lack of legislative technical norms,and inconsistency between some judgments and public opinion.The second chapter first analyzes the three different doctrines "basic adaptation theory","necessary theory" and "effective suppression theory" identified by the current legitimate defense limits,weighs the pros and cons of them,and proposes that the author supports the view of "necessary theory" and It conducts argumentation;and then analyzes the interpretation of the provisions on defense limits in the law,focusing on the interpretation of the two qualifiers "obviously exceeding the necessary limit" and "causing significant damage".Both the limit of defense behavior and the limit of defense results cannot be ignored,When the legitimate defense limit is determined,the unification of the two should be realized.Chapter III,in view of the problems existing in the determination of the legitimate defense limits summarized in Chapter I,on the basis of the theoretical analysis in Chapter II,proposes a feasible institutional framework: first,change the thinking of defense limits identification,and secondly,improve the legislative technical specifications,Finally,it is necessary to coordinate the relationship between judgment and public opinion.The author believes that on the issue of judicial determination of legitimate defense limits,the objective and subjective elements of the defender's defense cannot be separated from it;secondly,the interpretation of laws and regulations should be based on the interpretation of the legislative objectives.Consider the defense results as a whole;finally achieve the unity of judgment,justice and public opinion.