Difficulties In The Judgment Of The Self-defense And The Activation In The Judicial Practice

The legitimate defense system is a key part of the 1997 criminal law amendment.The “excessive limit” in Article 17 of the 1979 criminal law was amended to “obviously exceed necessary limit”,adding the word “obvious”;“hazards” was amended to “significant damage”.The intention is to change the thinking of excessive strikes,relax the standards for the identification of legitimate defenses,and encourage citizens to have the courage to resist the offenders when they encounter illegal violations.However,in judicial practice,the legitimate defense system continues to appear “Zombified” and has not achieved the effects expected by legislators.In judicial practice,how to define the issue of legitimate defense and excessive defense remains a difficult problem.In addition,the 1997 Criminal Law also added a third paragraph to the legit imate defense system,which is to defend against the ongoing crimes of murder,homicide,robbery,rape,abduction,and other violent crimes that seriously endanger human security,causing unlawful abuses.The casualties do not belong to excessive defense,they still belong to legitimate defense,and do not bear criminal responsibility.Some scholars refer to the behavior of the third paragraph as “unlimited defense” or “special defense”.In the past,the third paragraph was generally regarded as a special provision of legitimate defense by the academic community.However,in recent years,some scholars have questioned the so-called unlimited defense right of the third paragraph,thinking that it is not a general and special relationship with the provisions of the preceding paragraph,but rather a reminder provision for situations where defense is not adequate.Obviously,if judicial workers want to solve the problem of legitimate defense and excessive defense that are extremely confused in judicial practice,they need to do the following: First,they need to clarify the concept that the “illegal violations” and the “ongoing”.For example,what is illegal infringement,how to judge whether illegal infringement is in progress,and whether the word in progress must include urgency.Without clarifying these concepts,it is impossible to further grasp the criteria of the necessary limits.Furthermore,in order to solve the problem of how to judge the behavior as legitimate defense or excessive defense in judicial practice,the first thing to be solved is how to define the necessary limits of legitimate defense.This is not only the core of resolving this issue,but also a very important part of handling difficult defense cases.How to define the necessary limits of defensive behavior,how to look at the relationship between the necessary limits and the results of causing significant damage,and how to look at the role of the newly added third paragraph in the real defense system are all issues that need to be urgently addressed.Only by solving the above problems can we properly understand the forms of crime of excessive defense and provide necessary treatment ideas in judicial practice.In order to solve the above problems,we must first explore the logic behind this system starting from the nature of legitimate defense and the legislative purpose of the legitimate defense system.Secondly,it is necessary to propose a reasonable definition plan for the limit conditions,so that the case handlers have a relatively unified thinking and objective judgment criteria in the process of actual cases,so as to provide a general direction and thinking path for case handling,so as to avoid similar cases.Sentencing,or still with a simple moral view,to deal with cases in accordance with the old perspective and the “result-only theory” method,led to the purpose of encouraging the defenders to actively use their rights to fight against illegal protection of their rights cannot be achieved.Finally,to achieved the effect of judicial activation.