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Research On The Limitation Of Legitimate Defense

Posted on:2021-02-17Degree:MasterType:Thesis
Country:ChinaCandidate:Y JiangFull Text:PDF
GTID:2416330626462531Subject:Criminal law
Abstract/Summary:PDF Full Text Request
In a country ruled by law,public relief is the most common and important way to solve social conflicts.However,due to the lag of public relief,in order to stop the ongoing illegal infringement or avoid the expansion of infringement,the law gives citizens a right to protect their legitimate rights and interests-justifiable defense.From the establishment of the justifiable defense system in article 17 of the criminal law in 1979 to the reregulation of justifiable defense in the criminal law in 1997,the concept of justifiable defense has been further improved and the provision of unlimited defense right has been added.However,there are still many problems in the justifiable defense system of the new criminal law,such as the unclear definition of terms such as assault,how to understand the limits of defense and how to define the timing of defense in judicial practice,etc.These issues,legal provisions and judicial interpretations are not clearly defined.In addition,the long-standing "results-only" view in our country's judicial activities has led to numerous cases of a defensive nature.Due to the serious injury or death of the victim caused by the defender,all cases have been identified as intentional crimes or excessive defense,and the results determined as justifiable defense are rare.Therefore,for a long time,the justifiable defense clause was called the "sleeping clause".At the same time,because the consciousness of defense is a kind of deep-rooted instinct handed down from ancient times,every case involving justifiable defense will receive the common attention of all aspects of society,resulting in great controversy and social influence.For example,it was selected into the 12 th batch of guiding cases issued by the Supreme Court,"Jiangsu Haiming Kunshan Anti-homicide Case".Therefore,this article mainly focuses on Kunshan anti-murder case and studies the defense limits of justifiable defense and other related issues.This article is comprised of four parts,including:The first part: case analysis and problem derivation.This part introduces the specific case,leads to the controversial focus of the case,and then puts forward the identification theory of justifiable defense limits and common problems in judicial practice that this article focuses on.The second part: the theoretical basis of the determination of justifiable defense limits.This part mainly introduces the principle of the unity of subjective and objective and the perspective of the defending person in the process of the determination of the justifiable defense limit,and three specific considerations: the strength of unlawful infringement,the urgency of unlawful infringement and the protection of rights and interests.The third part : Analysis of the problems and causes of the determination of justifiable defense limits in judicial practice.First of all,combined with cases,it introduces the common problems in the judicial practice where justifiable defense limits appear,such as: the abuse of monism(only result theory),the abuse of "weapon/injury result equivalence theory",the failure to consider the particularity of continuous infringement,the evaluation of defense behavior from the perspective of post-event time nodes and objective third parties,the determination that the defender has the obligation to "refrain from yielding" and the failure to correctly understand the relationship between the second and third paragraphs of Article 20 of the Criminal Law,etc.Secondly,it introduces the causes of the above problems,such as the conservative and traditional attitude of the judicial organs,the old and wrong recognition concept of judicial personnel,the vague concept of legal provisions and the lack of guiding cases,which lead to different standards for the recognition of justifiable defense.The fourth part: Judicial Suggestions on Perfecting the Determination of the Limits of Self-defense.Combined with the theory of the second part and the common problems and causes of the third part,this part proposes to improve the current judicial status of the difficult identification of justifiable defense by establishing correct judicial concepts,changing the judgment thinking of the scope limit,making relevant judicial interpretations and issuing guiding cases.
Keywords/Search Tags:Positive Defense, Defense Limit, Significant Damage, Judicial unification
PDF Full Text Request
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