Research On The Limitation Of Justifiable Defense

From the "Deng Yujiao case" that shocked the whole country in 2009 to the "Kunshan anti-murder case" recent years,justifiable defense cases have become the focus of our judiciary and the public.In the process of judging justifiable defense,"only Consequentialism" has always occupied an important position.In the process of analyzing the limits of defense,there are great difficulties in both academia and judicial practice.In the process of writing this article,the author search for the keyword "justifiable defense" through CNKI,judicial files and other channels,and find that in China's judicial practice,most of the verdict results have resulted in guilty verdicts,which are at most only deemed to be excessive defense,and the cases that can be deemed to be justifiable defense are very rare."Kunshan Anti-Killing Case" has aroused extensive discussions in the whole country.In the judicial circle,there have also been discussions on justifiable defense disputes.Legitimate defense is a basic right granted to citizens by law in our country.It is also an important embodiment of human rights in our country's laws.It can protect our citizens' brave protection of their legitimate rights and interests and has a very critical value in our country's crim inal law.On December 18,2018 the supreme people's procuratorate issued 12 group of guiding cases,including the Chen Mou justifiable defence case,Zhu Fengshan deliberately harm(excessive defense)case,Yu Haiming's justifiable defence case,Hou Yuqiu justifiable defence case,a total of four cases,involvingthe precautions necessary to limit,crime,excessive defense and other seriously endanger the personal safety of violent crime in the judicial practice how to identify and understand.The introduction of the case provides some reference and ideas for judicial staff to correctly identify justifiable defense,but the specific situation of the case cannot be completely consistent with the case.In China,guiding cases cannot be directly used as the basis for the final decision.In the case that what is "obviously exceeding the necessary limit" has not been clearly defined by law or judicial interpretation,the understanding of "obviously exceeding the necessary limit" will reflect more individual subjective color.Therefore,the author thinks that the limit of justifiable defense still has space and value to discuss.According to the current criminal law,self-defense refers to the behavior that the actor takes to stop the illegal infringement in order to protect the state,public interest,personal,property and other rights of himself or others from the ongoing illegal infringement,which obviously does not exceed the necessary limit.This paper focuses on the defense limit of personal rights,which is divided into six chapters.The first chapter is a typical case of self-defense and its dispute focus,which is divided into two sections.The first section is a brief introduction of the case,with Deng Yujiao case and Kunshan anti murder case as the entry point to introduce the case.The secondsection is the views and dispute focus of all parties,which analyzes the two cases.The second chapter is about the connotation of the limit of self-defense,which is divided into three sections.The first section is about the legislative evolution of the connotation of the limit of self-defense.The second section is about the behavior limit and the result limit of self-defense,including the behavior limit of self-defense,the result limit of self-defense,the relationship between the behavior limit and the result limit of self-defense.The third section is about the over defense.The constitutive conditions include the relationship between the improper conduct,the severity of the damage,the improper conduct and the severity of the damage.The third chapter is the dilemma and reasons of judicial determination of self-defense limit,which is divided into two sections.The first section is the dilemma of judicial determination of self-defense limit,including the uncertainty of the interpretation of the standard of self-defense limit and the excessive attention to the consequences of self-defense.The second section is a brief account of the reasons why it is difficult to grasp the limits of justifiable defense,including the five parts of China's "Criminal Law" on the identification standard of justifiable defense is too vague,the judgment of "defense situation" is too objective,the legal benefits of infringement and defense damage are different,"social effect" and "legal effect" are difficult to unify,and the limitations of evidence collection affect the judgment of the limits of defense.The fourth chapter is about the theory of the limit of self-defense in foreign countries,which is divided into three sections.The first section is about the countries of civil law system,including Germany and Japan;the second section is about the common law system,which analyzes the conditions of the limit of self-defense from the two levels of personal and property;the third section is about the enlightenment to the judgment of the limit of self-defense in China,and briefly describes the Enlightenment of the above countries to China.The fifth chapter is the suggestion on the limit of self-defense in our country,which is divided into four sections.The first section is to expand the interpretation of the criminal law provisions of the limit of self-defense;the second section is to define the standard of the limit of self-defense,including the judgment standard and the elements of the limit of self-defense;the third section is to define the principle of the limit of self-defense;the fourth section is to change the post-judgment path of determining the defense limit "only Consequentialism".The sixth chapter is the conclusion,which points out the main idea and sublimates the whole paper.