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Research Of The Limit Of Justifiable Defense

Posted on:2020-12-26Degree:MasterType:Thesis
Country:ChinaCandidate:F ShenFull Text:PDF
GTID:2416330623953664Subject:Criminal law
Abstract/Summary:PDF Full Text Request
Justifiable defense is the instinct of human self-protection.The purpose of establishing the system of legitimate defense in China is to protect citizens' right to self-defense.From 1979 to 1997,China's criminal law was constantly improved,and the application of the standard of legitimate defense was expanded.but in the practice of judicial,because of the thinking logic of "result-oriented theory",there are some problems such as too stringent requirements for the defender's behavior when identifying cases involving legitimate defense.At present,there are a large number of phenomena in our judicial trial that justifiable defense behavior is considered to be excessive defense,or even that the case is defined as intentional or negligent crime on the premise of denying its justifiable defense directly.This logical method of "consequentialism" not only reduces the legitimate rights of defenders and the space of legitimate defense,but also makes our legitimate defense clause deadlock in practical application.This article is divided into four chapters.In the first chapter,through the analysis and summary of the relevant cases in judicial practice,the author draws the conclusion that in our judicial practice,there are three problems in the identification of defense limits: the logic of judgment based on the result theory,the low rate of justifiable defense judgments and the different standards of the identification of defense limits.Secondly,in the second chapter of this article,three typical casesconcerning legitimate defense in the Twelfth Guiding Cases promulgated by the Supreme Procuratorate are selected.Through the introduction and analysis of the Guiding Cases,the significance of the Guiding Cases to the determination of defense limits in judicial practice is clarified.The third chapter of this article discusses and compares the limitation of defense system in China's Taiwan area with the defense limit system in mainland China,with a view to drawing on the essence of the defense limitation system in Taiwan,so as to better solve the "result only" thinking mode in the judicial practice of our country when determining the defense limit.Finally,the fourth chapter of this paper discusses how to construct our defense limit system.
Keywords/Search Tags:legitimate defense, excessive defense, limits of Defense
PDF Full Text Request
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