Research On The Identification And Punishment Of Excessive Defense

The over-defense system is a special system in the criminal law system,which is based on legitimate defense,but is negatively evaluated by the criminal law because it causes significant damage beyond the necessary limit.It is a criminal act.In judicial practice,due to problems in the identification and punishment of excessive defense,cases related to excessive defense have been widely discussed and even criticized by the public.The thesis is divided into three chapters according to the thought and process of conviction and sentencing.The first chapter mainly starts from the basic theories such as the concept and composition of excessive defense,and clarifies the connotation and extension of excessive defense.The second chapter mainly summarizes and expounds the problems of excessive defense in judicial practice from the two levels of identification and punishment.The fact that excessive defense constitutes or not is related to the determination of crime and innocence,so it has been widely concerned in judicial practice.The reason is that the long-term existence of the reverse identification of the result of the reverse behavior leads to the widespread existence of the "result theory" phenomenon.Even if I noticed the idea of ??determining from behavior to result,but the criminal law does not specifically stipulate what is "obviously exceeded" and what is "necessary limit",which leads to the inconsistency of judgment standards for excessive behavior,and gradually formed The Zhuge-style“equivalent theory”-based certification standard places strict requirements on the defense humanities,which reduces the starting point for excessive defense certification.Concerning the form of subjective guilt of over-defense,China's criminal law theory is in a state of confusion,and it does not provide a clear and clear standard for judicial practice.In terms of sentencing,although the law stipulates that the excessive defense constitutes a criminal offense should be reduced and exempted from punishment,but there is no clear standard for exemption from punishment,resulting in a low application rate in practice,and there are repeated evaluations and indirect punishment phenomenon.In response to the above-mentioned problems,the author proposes specific measures for elimination in Chapter 3.Excessive behavior and excessive results are independent constituent elements,and the view of “dualism”should be adhered to and the thinking of “behavior ? result” should be established.The determination of excessive behavior should be based on the standard of defense "necessary" and the starting point of the actual needs of the actors to stop and resist illegal violations.When judging the form of delinquency,it is necessary to insist on defensive cognition,give full play to the role of defensive cognizance in the determination of delinquency,and consider most delinquency cases as negligent crimes.In the case of improper defensive sentencing,exemption penalties should be applied to cases of negligence causing serious injury and surrender,as well as social investigations,and exemption penalties should be applied to defensive misconduct cases that have caused negligence and causing death.rate.Victim's fault is the element of crime in the case of over-defense,not the sentencing plot,and it is not appropriate to repeatedly evaluate the sentencing.At the same time,combined with the particularity of the case of excessive defense,the circumstances of causing property damage and minor personal injury to others during the defense process should not be used as a sentencing scenario in the case of excessive defense.