Justification Of Defense In Soft Violence

In January 2018,the "Supreme people's court and Supreme people's procuratorate" issued the "Guiding Opinions on Several Issues Concerning Handling Criminal Cases of Gangsters" For the first time mentioned the issue of "soft violence" in underworld crimes.And put forward a series of criminal policy measures.This indicates the state's attention to the new situation and new situation of triad crime.However,the state has not stipulated the justification for the legitimate defense against "soft violence" crimes that occur frequently in reality.However,correspondingly,the application rate of our country 's legitimate defense in judicial practice is extremely low,especially in the face of soft violence,the legitimate defense is almost reduced to a zombie clause.Because of the uniqueness of soft violence,solving the problem of justifiable defense in soft violence has become the key to solving the problem of justifiable defense in judicial practice in China.In the judicial practice,the purpose of the case trial is to maintain stability,so that the wrong elements,time elements,consciousness elements,object elements,and limit elements are wrongly recognized,and artificial avoidance obligations and comparison elements are added.When defenders implement proper defense against soft violence that is more concealed,more nuisance,and has considerable social harm,it is easy for judges to deny the nature of defense or consider it as over-defense.To solve the problem of difficult determination of legitimate defense,it is necessary to use the recent legitimate defense against soft violence as a breakthrough point,establish the defender's priority protection theory,and introduce the objective standard of common rational people in the Anglo-American case law.Re-recognize the long-term and nuisance of soft violence crimes,and face up to the application of "nonconcession" and "castle rules" in the justification of defense against soft violence.This establishes a rights-based judicial view,stimulates the vitality of legitimate defense clauses,and encourages defenders to fight against black and soft violence.