An Empirical Study On The Identification Of Defense In The Case Of Illegal Detention

In judicial practice,it is difficult to determine whether the act of unlawful detainment can exercise justifiable defense.Because illegal detention is often accompanied by non-confrontational behavior,pushing,abuse,slight violence is its common accompanying behavior,and even some cases may not have any violation behavior.It is precisely because the defender's rights and interests are violated relatively little and the urgency of the infringement is not high,the defender who is illegally detained is required to make a moderate counterattack against his own behavior,and the counterattack must be moderate and restrained.However,this requirement clearly does not take into account the special circumstances of unlawful detention.On the one hand,illegal detention is a continuous process,which is oppressive to the detainee's heart.On the other hand,in the process of illegal detention,non-confrontational aggression may evolve into more violent aggression.Victims of illegal detention,in fact,often out of a desire to protect themselves,do not intentionally hurt others.At the same time,the detainee is in a state of emergency,and the appropriateness of the defence is clearly difficult to ascertain,depending largely on the state of the detainee.This makes it subjectively difficult to judge whether the detainee,the defender,is intentional or negligent or is the result of damage caused by external causes.The criminal law obviously attaches more importance to results.In addition,in judicial practice,the judicial organs have limited interpretation of justifiable defense,as well as mechanical interpretation of legal provisions,leading to justifiable defense in the state of illegal detention,which is often considered as excessive defense,and excessive defense is considered as intentional crime.If there is a defense factor,it will be determined as intentional crime,and then the sentence will be reduced without changing the charges,so as to give consideration to the interests of the victim and the defendant.As long as it causes serious damage,it shall be deemed as excessive defense,and be treated as intentional crime,and be given a lighter sentence in sentencing,so as to balance the emotions of the injured party and temporarily achieve the effect of court judgment to settle disputes.However,for the defendant,his right to defense is limited by law.In practice,the illegal detainment carried out by pyramid selling organizations,the illegal detainment carried out for the purpose of abducting and selling women and children,and the illegal detainment carried out for the purpose of demanding debts are typical non-violent or light violent unlawful infringement.Overall observation,the degree of violence in such cases is far less than that of typical violent crimes such as intentional homicide and robbery.The problem is that if the victim USES a violent counterattack(such as stabbing)during the escape process,it will be in sharp contrast to the violence of the illegal infringement.In hindsight,such counterattacks can easily be considered intentional or defensive misconduct.Through a large number of data cases,specific cases are analyzed,and the conclusion is made: First,under the condition of simple detention,the court holds that the defendant's behavior is defensive,which indicates that simple illegal detention can be the premise of justifiable defense,that is,the violation can be illegal detention.Secondly,illegal detainment makes the perpetrator in danger for a period of time,and the issue of defense time node makes the public not know when they can carry out justifiable defense,thus making the justifiable defense system become a mere formality.Adopting holistic thinking to make judgment can timely and effectively protect one's personal and property interests and solve the problem that the defender does not know when to defend.Third,when it comes to the "urgency" of defense,courts have different criteria for determining whether cases of illegal detention are "urgent," but few have been able to find out,mainly because the criteria are too strict.Based on the comprehensive judgment and analysis,it is concluded that the "urgency" should not be too rigid,the "urgency" of future infringement should also exist,and the isolated analysis should not be carried out,so as to draw a correct judgment.At the same time,due to the influence of ancient Chinese concepts and the theory of weighing legal interests,there are a large number of consequentialist judgments in the determination of justifiable defense in illegal detention cases Value concept of justifiable defense system is to encourage private relief force behavior of fighting against crime,also contains the personal rights protection and state order maintenance of dynamic balance,but in the judicial practice for illegal detention justifiable defence that present is too conservative,too much emphasis on theresults of the laws of the phenomenon,the stability and priority of judicial practice thinking inertia,and justifiable defence legislation needs to be further refined tumble.In judicial practice,we should attach importance to the identification of justifiable defense in illegal detention,otherwise,the serious neglect of the right of personal freedom may make the institutional value of justifiable defense become a mere formality.To sum up,it is considered that supporting self-defense in illegal detention is completely desirable and can be encouraged to apply.Continue to risk in the judicial practice of illegal detention of a type of crime and justifiable defense problems were analyzed,and clear the scope of unlawful infringement,clear the definition of ongoing,occasions in illegal detention,even against the result of each other and also should admit defense properties of behavior,caused no serious consequences,or behavior was not significantly more than necessary to limit is subject to the judgment of the justifiable defense mode,in order to strengthen the judicial practice justifiable defense in recognition of the value judgment.