Research On The Dilemma Of Judicial D Etermination Of Defense Limits

On the basis of relaxing the standard of defense limit recognition,the criminal law in1997 added the right of no excessive defense.The deep-seated intention is to expand the scope of application of the justifiable defense system.However,the defense limit standard is too harsh in practice.Justifiable defense is deemed too severe,while excessive defense is deemed too broad.In order to let judicial practice follow the pace of legislation.Firstly,judicial personnel should make it clear that justifiable defense aims at estimating people's active combat against unlawful infringement and conduct an in-depth study of defense limits.Establishing the “dualism” of behavior limit and result limit and abandoning the only result theory and weapons equivalence theory in practice are also necessary.Secondly,in the process of ascertaining the facts of the case,the situational judgement should be adopted.In order to avoid asking too much of the defender after the event.An understanding that clearly exceeds the necessary limits is comparing the risk of defensive behavior with the risk of minimally effective defensive behavior.Only when the former is more dangerous than the latter,can it meet the requirement of obviously exceeding the necessary limit.For the determination of “obvious excess”,the principle that it is in favor of the defender when in doubt should be adopted.Where there is no obvious excess,the act shall be deemed appropriate.At the same time,judicial personnel in the trial of justifiable defense cases,should have the courage to bear,to avoid stable thinking and sympathize with the weak mentality affecting the judgment of the case.For the case that is identified as justifiable defense or excessive defense,it should not be determined as excessive defense or normal crime under pressure of other factors.We should ensure that justifiable defense cases are properly adjudicated.