| Legitimate defense is an important system of China’s criminal law.From the case of Yu Huan,Yu Haiming to Zhao Yu,the judicial practice of legitimate defense has always been the focus of society.The results not only involve the concerns of the people and a simple sense of social justice,but also have an important impact on the credibility of the judicial organs.This article analyzes the predicament of legitimate defense identification in the past judicial practice,and discusses the difficult identification of the nature of defense and the strict control of the condition of defense limit.It is believed that the cause of problems in the lack of unified standards in the theoretical circle,the interference of factors outside the case,and the result-oriented thinking.The following is a list of several typical legitimate defense cases that have attracted a lot of attention recently in the society.Find the common ground of the case from the typical cases,and find the trend of the justification of defense in the new situation in the judicial treatment of the case,that is,the general trend is to relax the determination of the justification of defense.However,not all defense cases of this type are relaxed and should be adjusted according to the theoretical standards of the relevant conditions.This article explores the determination of legitimate defense in the new situation from the perspective of judgment documents and academic theory,and analyzes the trend of the new legitimate defense system.We should grasp the criterion of legitimate defense from the relationship between right and wrong,make an elastic judgment for both cases that are pure and non-pure respectively.In terms of premise condition,should distinguish between serious unlawful infringement and mild unlawful infringement different applicable standards,that is,the vicious violence incident and the general life dispute two kinds of circumstances to judge whether the defense is valid.In terms of object conditions,It may exercise legitimate defense against the unlawful infringement by a person without liability,provided that the defender shall first try his best to avoid and control the limits of defense.In terms of subjective conditions,it is considered appropriate to evaluate antagonistic relationships between impure legitimators and violators;In terms of time conditions,different levels of requirements were made from the start time and the end time of the violation;In terms of limiting conditions,aiming at the urgent violation and the relatively slow violation,this paper discusses the applicable criteria of the limit determination of each case. |
