Study On Justifiable Defense In Mutual Affray

Mutual affray refers to the continuous mutual infringement behaviors carried out by participants under the control of the intention of active harm.Justifiable defence is the cause of illegal obstruction.The two are completely different in nature,but they are very similar in form,especially in the unexpected fight without prior agreement,so they are easy to be confused.To facilitate the distinction between justifiable defence and fistfight,gradually formed a simple and easy to operate in the judicial practice criterion-"causes a duty standard" and "to the standard",although such standard for the judicial practice has certain guiding significance,but at the same time there are unreasonable,the former not only make the judicial organ is easy to ignore the case for a qualitative analysis is of great significance with reality,and could not answer cause a duty in the counter if there work evil intentions and defence intention when how to qualitative problem,also can not answer each other obviously excessive counter claim justifiable defense question;The latter actually violates the original intention of justifiable defense system.So there is a need for reflection.This paper takes mutual fighting behavior as the main object of study,and based on the establishment requirements of justifiable defense system itself,discusses the standard of justifiable defense identification in the case of mutual fighting.There are often several types of cases in the case of fistfight,namely,the cause of blame,the anticipation of aggression,and the preparation of tools in advance.This paper selects cases that are reflected in these three problems to analyze in order to clarify the identification methods of these cases.Mutual blows are usually caused by civil disputes,so the cause of mutual blows should not become the qualitative condition of justifiable defense in criminal law.Those who are responsible for the cause can take a restrictive position,so as to give consideration to the fairness of the defender and the defended.The "last resort" standard actually violates the original intention of the establishment of justifiable defense system and should replace "last resort" with "urgency".Therefore,in principle,the defender does not undertake the obligation of avoidance.The actor anticipates that the infringement belongs to his subjective understanding,and the objective "urgency" of unlawful infingement cannot be denied.Therefore,the actor's subjective intention reflected in the preparation tool should be carefully analyzed in combination with other facts and details of the case,so as to ensure that the nature of the case can be objectively evaluated.