An Empirical Study On The Judicial Application Of Justifiable Defense

The system of justifiable defense stipulated in the Criminal Law of our country is to guarantee the citizens to exercise their right of justifiable defense,to carry forward social justice,and to strengthen the confidence and determination of ordinary citizens in fighting against illegal and criminal acts,to protect the interests of the state,the public interest and the legitimate rights and interests of ordinary citizens.After analyzing the cases of justifiable defense in Jilin Province in recent 9 years,the author finds that the determination of justifiable defense is still very difficult and the rate of determination is very low when dealing with the cases of justifiable defense,the judicial officers are used to analyze the facts of the cases from the angle of damage,and often confuse justifiable defense with over-defense,justifiable defense with mutual affray.The judgment documents are deficient in reasoning in different cases,and the reasons for not satisfying the defense consciousness and rejecting the defense opinions are not sufficient.These problems are caused by various reasons,the deviation of understanding the concept of criminal law leads to the determination of justifiable defense cases is too strict and conservative.In the absence of clear legal provisions that lead to different standards in the distinction between justifiable defense and overdefense,justifiable defense and affray.The interpretation of judgment documents needs to be strengthened urgently.And the judicial personnel in handling cases may be negatively interfered by factors outside the cases.Therefore,it is necessary to conduct an in-depth empirical study of the relevant cases,to find out the difficulties of the application of justifiable defense and put forward solutions.Justifiable defense is a reason to prevent illegality,in order to make justifiable defense play its proper role,we should actively promote the perfection of the judicial application of justifiable defense system,it includes several items: setting up the scientific and public-approved criminal law view,making clear the boundary between justifiable defense and over-defense,making clear the boundary between justifiable defense and affray,improving the rationality of the judgment documents and overcoming the influence of the factors outside the case.The interpretation of the applicable standards of justifiable defense in the criminal law and its application in a lenient and strict manner are subject to the certain views of criminal law.The criminal law view exists independently of the criminal law norm,which has the profound guiding significance to the criminal law norm and the penalty application.In handling cases of justifiable defense,judicial officers need to make accurate judgments on the technologies of justifiable defense and over-defense,according to the nature,intensity,harm intensity of the violations and the nature,intensity,the environment,the damages of the defensive behavior.Any person who causes serious injury or death by carrying out an obviously unequal defense counterattack shall be deemed to have acted overdefense.A simple factor of tools preparation,causing the death of the violator,being responsible for the cause and striking back hard against the slight violations cannot provide sufficient basis for the cognizance of affray,we should integrate subjective and objective aspects of a variety of factors to distinguish fighting and justifiable defense.First of all,the subjective aspect of the actor should be accurately identified as the intention to fight or defense intention.The determination of the actor's intention can be made from the aspects of whether the instrument was prepared in advance,whether there was premeditation or whether the actor was responsible for the cause.Second of all,in order to find out whether the behavior is "affray" or "self-defense",we must combine the objective factors which cause the death of the other party and the serious counterattack to the slight injury with the subjective factors of the actor.The application of the theory of justifiable defense in individual cases should pay attention to the interpretation and reasoning of the judgment,and the judgment documents should pay attention to avoiding falling into the mire of simple reasoning,crude reasoning and fillin-the-blank reasoning,to make each justifiable defense judgment can fully explain the truth,explain the legal principle,explain the reason and have good literature.In addition,when dealing with cases of justifiable defense,the judicial practitioners should avoid and eliminate the negative influence of the extra-case factors on the case itself.First of all,we should encourage public opinion to play a positive role,avoid the negative influence of public opinion,and resolutely crack down on those who maliciously spread rumors to mislead the public and control the interference of public opinion in handling cases.Secondly,we should treat correctly the reactions of the target of justifiable defense and their families,eliminate pressure,handle legitimate defense cases according to law,actively conduct legal publicity work for the objects of defense and their families and friends,and let the client comply with the verdict;finally,it is necessary to scientifically perfect the mechanism of investigating the responsibility of judges to avoid individual judges making wrong decisions or decisions does not correspond to the facts because of their own improper behavior.