Special Defense Research

Justifiable defense is an important system in criminal law.In 1997,when the criminal law was revised,the system was improved on the basis of the first two clauses of article 20,and the third clause,namely the special defense right,was added.Since its establishment,this article has caused widespread concern and discussion in the theoretical and practical circles.In recent years,with the emergence of hot cases of justifiable defense,the public has once again expressed strong concern about the exercise of the special defense rights system and the application of the law.Based on the hot case in practice,this paper studies and analyzes the nature,constituent elements,related problems and legal application of special defense rights based on the previous research results.With a view to perfecting and applying the special defense rights.This article is divided into two parts: introduction and body,with catalogue and references.Specifically,the main points of this paper can be explained as follows:The first part analyzes the legal issues related to the special defense rights that the public is generally concerned about,especially the constituent elements of defense.Profoundly explain the theoretical and practical significance of the study of his legitimate defense cases.At the same time,through the study of the general provisions of the legitimate defense system in Germany and Japan,Interpretation the existing problems in the judicial application of special defense rights as a whole,providing theoretical support for further analysis of whether his behavior is a special defense.In the second part,on the basis of mastering theoretical knowledge and specific case,this paper analyzes whether his counterattack behavior is a special defense.In the argument,adopt the syllogism model,that is,in the analysis and comparison of the legal provisions with the specific case,the final conclusion is drawn.In this regard,on the condition of defending time,Mr.Yu picked up a machete and attacked Mr.Liu continuously for 7 seconds,in this process,Liu did not show the idea and behavior of giving up the violation,his defense behavior is holistic and therefore meets the time conditions of defense.Second,on the limit of defense,inthe face of violence against the personal safety of the crisis,it is impossible to accurately determine whether the perpetrator has lost the ability to continue the infringement.Nor can we make too demanding demands on defenders who are extremely fearful at the scene of the crime.Therefore,his behavior meets the limits of defense.In the face of dangerous situation,he is exercising special defense and should not bear criminal responsibility.In the third part,on the basis of analyzing his defense cases,further study the current status and problems of the application of the special defense right legal system in judicial practice.Combined with the current theoretical circle,the phenomenon of legitimate defense is gradually shifting to heavy behavior and light result mode,and put forward its own suggestions on the legal application of this system.Specifically,it includes: constructing judicial rules,clarifying the concept of justice and changing the mode of case identification.These countermeasures are proposed to provide useful help for the judicial application of special defense rights in China,so as to better implement the legislative purpose of establishing this system.