Research On The Judgment Standard And Punishment Of Excessive Defense

Under the background of being deeply influenced by the thought of rule of law,it is the purpose of the operation of the national penalty power to crack down on criminal acts and effectively protect the personal and property safety of citizens.As a very important part of the defense system,if we can't deal with the excessive defense properly,it will not only pose a threat to the life safety of others,but also may have a negative impact on the social order.When the judicial organ judges whether the defense behavior "obviously exceeds the necessary limit",it will reach the conclusion that it obviously exceeds the necessary limit and causes significant damage simply because of the consequences of casualties caused by the defense behavior,which often has a prominent result only orientation,which is contrary to the legislative tenet of self-defense.The need to stop illegal infringement should be regarded as the standard to define the "necessary limit" of self-defense.At the time when the judicial organ decides whether the act of defense constitutes a defense,it should take the actual need to stop the illegal infringement as the criterion.In the process of judicial practice,there is also a deviation in defining the critical point of major damage when judging some cases of excessive defense.On the face of it,serious injury and death are the two consequences of causing major damage.However,in this case,if the defense behavior does not exceed the necessary limit,it still fails to meet the standard of major damage.That is to say,the defense behavior that obviously exceeds the necessary limit leads to the serious injury and death consequences of the illegal infringer,and then the defense behavior constitutes significant damage.The judgment of "obviously exceeding the necessary limit" should be made in advance,and the judgment of "causing significant damage" should be made after the event,with a strict distinction between the two.It should be determined independently whether it constitutes "obviously beyond the necessary limit".In view of the need for a substantive understanding of the "major damage",it should be considered whether the damage is caused by the defense obviously exceeding the necessary limit.When the act of defense not only meets the requirement of obviously exceeding the necessary limit in advance,but also causes significantdamage after the event,only when two conditions are met at the same time can it constitute excessive defense.When determining that "significant damage is caused by obviously exceeding the necessary limit",the court tends to have an obvious result only tendency;when analyzing the meaning of "necessary limit",the court does not consider the aspect necessary to stop the illegal infringement,besides,there is the issue of judging afterwards.There are formalization and lack of substantial rationality in the process of defining "major damage".Among these problems,in terms of judicial practice,the most urgent need to change is that we should be based on the perspective in advance,when defining the "necessary limit",the standard should be the practical need to effectively prevent illegal infringement.The necessary limit of self-defense understood in the theoretical circle is: in many appropriate and the lightest possible cases,at the same time,the defense behavior that satisfies the direct risk of causing personal damage and has no relevance.This understanding mainly involves three aspects.The first point is that the act of defense can effectively prevent the illegal infringement and is appropriate;the second point is that when the act of defense is required to be taken,the lightest means of defense is necessary when facing the illegal infringement;the third point is that when the defender chooses the means of defense,he should choose a way to ensure that he has no risk.It also means that even if there is a lighter and slower way of defense,if the defender chooses this way,he will face the risk of defense failure.In this case,it is not necessary for the defender to choose this way of defense.In other words,when judging the limit of defense,we should consider whether there will be a relatively ideal defense plan in the specific situation of facing illegal infringement.If the conclusion is not there,the conclusion is that the defense man does not obviously exceed the necessary limit in the process of defense.In judicial practice,the main problem of reducing excessive defense punishment is that the use of exemption punishment is too strict,repeated evaluation and indirect punishment problems are more prominent in some sentencing.The reason behind the investigation is that in the process of trial and defense of excessive cases,the practical departments did not pay enough attention to the basis of punishment reduction and exemption,and did not study theessential reasons behind the circumstances of lighter and heavier punishment.The author thinks that the main points that can be improved when judging the excessive defense in practice are as follows: first,the basis of judging the necessary limit must be said.Second,when determining the form of responsibility for excessive defense,we should fully consider the impact of defense awareness,which is usually judged as negligent crime.Third,we should pay full attention to the reasons for the reduction of excessive defense punishment.When the probability of expectation for the defender is reduced to a large extent,the punishment for the defender should be exempted.Fourth,when applying the related circumstances of sentencing,we should carefully analyze the substantial basis and factual basis of all kinds of circumstances of heavier and lighter punishment to avoid repeated evaluation or indirect punishment.