Difficulties And Solutions Of Judicial Application Of Legitimate Defense Limit

In recent years,a series of defense cases have aroused heated discussion among the public,and the long-dead legitimate defense system in China's judicial practice has been vigorously discussed.However,the judging standards for defense limit have not yet reached a unified understanding in the criminal law academic community and judicial practice.As a result,the judicial application of the defense limit condition is biased and caught in a dilemma.The shackles of the judicial application of the legitimate defense system still exist,and judicial justice is hard to achieve.In this regard,the highest judicial organ in China has issued guidance cases to explain every condition of legitimate defense,and pointed out the judgment method of excessive defense,which has great guiding significance for the judicial application of the legitimate defense system.Under the guidance of the "Zhao Yu case","Laiyuan case" and "Tang Xue case",the value of "the law does not need to make concessions to the law" and the rights of defenders have priority.The concept plays an effective role in guiding citizens to properly exercise their right to defend,and fully demonstrates the inherent requirements for building a country ruled by law.However,the Supreme Judiciary did not clarify the specific composition of the defense limit condition in the guidance cases,and the application of this condition is still biased.Therefore,it is necessary to further explore the theoretical composition of the defense limit condition and judicial application on this basis.In order to eliminate the deviation of the judicial application of the defense limit condition in China,this article analyzes the content of the hot defense cases,comprehensively analyzes the content of Article 20,paragraph 2 of China's "Criminal Law",the theory of defense limit theory and the highest judicial organ in the case of legitimate defense guidance.In this view,the judgment standard of the defense limit includes two limit elements of behavior and result,and it is excessive for the defense to exceed both limits at the same time.Defense only exceeds the behavior limit or the result limit still constitutes a legitimate defense.The "necessary limit" in Article 20,paragraph 2 of the Criminal Law should be understood as the limit of conduct,and its judgment elements include the principle of necessity to stop unlawful violations,the principle of proportionality of defense strength,and the principle of effective and least defensive means;"Significant damage" should be understood as the result limit,as an auxiliary judgment criterion in the defense limit judgment;Article 20,paragraph 3 is the attention provision of paragraph 2,the purpose is to inform citizens that they can take defense against violent acts that seriously endanger personal safety.The measures that caused the unlawful infringement of serious injury or death did not exceed the defense limit,and the behavior is not overdefense.On the basis of distinguishing between unlawful and responsible,the overdefense should be treated as a distinction:defenders who are in a state of panic,and other unpredictable possibilities and defend properly,do not need to bear criminal responsibility,and are not responsible.The solution to the judicial application dilemma of our country's legitimate defense limit can be considered from the following three levels: First,to investigate the theory of defense limit outside the territory,China's legislation can consider borrowing from the provisions of the German Criminal Code to modify or add to our criminal code The provisions of justifiable defense add an exemption for excessive defense;the judicial side can learn from the US criminal law to set the corresponding defense limit according to different types of legal interests,and can refer to its principle of force distinction and reasonable belief in the determination of limits.Second,in the theory of criminal law,it is clear that the "dualism" of the principle of individual rights preservation and the maintenance of legal order is taken as the theoretical basis for legitimate defense.It should meet the limit conditions of defense by default.Third,China's judicial practice also needs to make changes in methods and concepts,that is,to combine the guiding case and criminal law theory to accurately grasp the judgment standards of the defense limit,change the judicial concept,correct the positioning of the judicial judgment function,and rationally face the judicial public opinion,to achieve judicial justice and social fairness and justice.