Research On The Recognition Standard Of Special Defense Right

Self-defense is transformed into lynchings and originated from revenge,and its historical origin can be traced back to primitive society.However,human beings are driven by biological instinct to exercise self-defense.Later,the law only allows citizens to use violence to protect their personal and other rights when the personal and other rights of citizens are being violated unlawfully and when it is too late to protect the personal and other rights of citizens by relying on the right of state punishment.With the further development of society,self-defense as a way of relief in the case of ongoing unlawful infringement of personal and other rights began to change from lynching.Article 20,paragraph 3,of our criminal law has created a system of defence without misconduct in our criminal law,which we can call special defense right.In 2014,humiliating case caused great public opinion,caused great attention from all walks of life,criminal law experts and scholars have expressed their different views.The application of self-defense system in real life is very common,among which the special defense system is an important "weapon" for citizens to protect themselves in the face of serious illegal infringement.In the judicial cases of our country,the standard of self-defense is very strict.In the application of special defense clauses,the criteria for determining the cause condition and time condition are more stringent.It can be found from the real case that as long as the defense behavior of the defender causes the death of the perpetrator of the infringement,it is impossible to escape the responsibility of "over-defense ".In addition,there are many problems when the judicial organs specifically determine whether the defender is a special defense.Because of the dispute over the relationship between "obviously exceeding the necessary limit" and causing significant damage,the standard of determination is logically "result-only" and mechanically severed from the whole defence;because the non-legal term of "murder" is vague,the standard of "affray" in defense is expanded,which results in the generalization of the standard of mutual affray,the act of counter-attack as mutual affray,and because the definition of "other violent crime seriously endangering personal security" is unclear,which results in defense.There is mechanization in the standard,which results in the measurement of mechanization and the determination of "damage result ".The existence of these problems makes the determination of special defense right difficult.The development of foreign special defense right is also a long history,many foreignjurists have also devoted themselves to studying the criteria special defense right for many years,and have important conclusions.By comparing the legislative provisions of different legal systems of civil law and common law,this paper analyzes the similarities and shortcomings,and enlightens the establishment of the standard of special defense right.In order to make the judicial staff to determine the special defense right more accurate in practice,so that citizens better exercise the special defense right.Our country should perfect the standard of special defense right.The principle of victim's superior interest protection is applied in judging "significant harm ",and the principle of majority obedience is adopted in judging " obvious ".Through the inspiration of "castle law" in Texas,our country can learn from the application of the principle of retreat..At the same time,establish the standard of special defense right in "mutual affray behavior ".