Study On Judicial Application Of Self-Defense And Countermeasures

Self-defense system is a self-protection remedy endowed by law under the situation of untimely intervention of public power.Criminal legislation is to encourage people to implement self-defense and fight against criminal acts bravely.However,there are many difficulties and problems in the judicial application of self-defense,which cause widespread concern of the public.The purpose of this paper is to sum up the problems in the judicial application of self-defense,find the causes of the problems through analysis,and finally put forward countermeasures?This paper focuses on the criminal cases of justifiable defense in Guangzhou from 2016 to 2019 and the hot cases of justifiable defense in recent years?It is pointed out that the number of cases of justifiable defense recognized by judicial organs is very small,and the problems of judicial application are analyzed.First,the confusion between "fighting" and justifiable defense is manifested in the lack of investigation into whether it is a defensive counterattack or a mutual assault.;Armed counterattack denied self-defense?The second is excessive defense when there are identified error,performance in the defense caused serious injury or death,generally identified as excessive defense;The defense limit is more damaging error?The third is the wrong understanding of illegal infringement,that dangerous behavior can not be defended,continuous infringement of negative defense.There are many reasons for the problems of justifiable defense in judicial application,including legal factors,judicial organs and social factors.In the aspect of law,the legal provisions themselves blur the constitutive requirements of justifiable defense;The special defense understanding leads to the reduction of the general defense scope;the burden of proof for defense.As for the judicial organs,under the current mechanism of backward investigation and accountability and under the pressure of handling cases,judicial personnel adopt the judgment thinking of harshstandards and fail to comprehensively analyze justifiable defense under the circumstances.In terms of society,people have the concept of "killing people dies,injuring people is punished",victims and their families pester petitionersThrough the analysis of the problems and causes,in order to activate the justifiable defense system,we should first rethink the justifiable defense system and explore the justification of justifiable defense.The author agrees that superior interest protection is the principle of justifiable defense.Justifiable defense has the essential superiority,When justifying justifiable defense,we should keep in mind the superiority of the defender.In determining defense limits,comprehensive judgment is required.The actual harm caused by justifiable defense is compared with the harm(danger)that may be caused by unlawful infringement,but the harm already caused by unlawful infringement cannot be compared with the harm caused by defensive act.The concept of "special defense" should be abandoned.In fact,special defense is not special,but also defense within limits.Article 20,paragraph 3,of the penal code provides only for attention.On the part of the judicial organs,the judicial organs themselves accurately grasp the spirit of legislation and comprehensively recognize justifiable defense.Public security organs collect objective evidence of justifiable defense during investigation.Procuratorial organs perform procuratorial functions and activate justifiable defense.The judge has to judge self-defense in context.Finally,more guiding cases on justifiable defense should be issued to explain the conditions,boundaries and standards of justifiable defense.