Research On Judicial Determination Of Excessive Defense

The judicial identification of excessive defense has always been one of the difficult problems in the field of criminal law and judicial practice in China.In the academic world,experts and scholars have studied this issue from different angles,but so far they have failed to reach a consensus on the issue of excessive defense.In judicial practice,judicial personnel have always maintained a cautious attitude towards the application of the system of excessive defense,so that article 20 of China's criminal law has been considered as "zombie clause" by the public.From the "Deng Yu Jiao case of intentional injury" in 2009 to the "Kunshan long ge anti-murder case" in 2018,once the defense case occurred,it quickly became a hot topic.The focus of public concern has been on how such cases should be characterized and the debate over whether they should be considered defensive or criminal ACTS.Judicial organs,scholars of criminal law and the public in the face of this problem in the qualitative differences.Although article 20 of the criminal law of China gives a brief explanation on the concept of excessive defense,there are no specific provisions on the specific elements such as "major damage result","necessary limit of defense" and "form of offense".In addition,the two high courts did not issue judicial interpretation on this element,which resulted in the lack of uniform definition standard in the trial of defense cases in practice,and the judge's judgment of excessive defense was of great subjective value,which ultimately resulted in the difference in the application of defense clauses.Specifically speaking,there are the following four problems.First,"similar cases are handled differently".The lack of accurate identification criteria leads to the different identification basis of judges in different courts,which makes the judges in different courts and even different judges in the same court make very big differences in the judgment of such cases.The second is the orientation of "results-only" in judicial practice,which determines whether it constitutes excessive defense by the appearance or not of damage result,and separates the overall elements of excessive defense.Thirdly,in terms of conviction,if the defensive act against the wrongful infringer has caused significant damage,and the infringing act of the wrongful infringer does not belong to the concept of "perpetrator",then in practice,most of the forms of the wrongful act areregarded as intentional crime,which leads to the deviation between judicial practice and the simple values of the public.Finally,the wrong definition of "mutual attack" is made.Because of the violent nature of defense ACTS,it is easy to confuse the nature of defense ACTS with that of defense in practice.As a result,a large number of defense cases are identified as such crimes as picking quarrels,causing trouble and intentional injury.In order to solve the above problems,a more feasible standard of determination can be summed up in a large number of cases.Real knowledge comes from practice,and the standards summarized from judicial practice have good reference significance for both theoretical research and judicial practice in the future.This article mainly USES the case analysis and empirical analysis,in case as the breakthrough point of excessive defense analyzes the problems existing in the case that the judge concluded that excessive defense case criterions for the conviction of thinking and thinking,and on the basis of the standards of excessive defense problems were emphatically discussed and put forward their views.The first part mainly discusses the concept of excessive defense and doctrine controversy.The first section is a brief summary of the concept of excessive defense,including the definition of the concept of excessive defense and related disputes.The second section focuses on the objective constitutive elements of excessive defense,focusing on the "obvious excess of the necessary limit","significant damage" and the relationship between them.The third section mainly analyzes the subjective aspects of excessive defense,specifically refers to the identification of the form of offense of excessive defense.The second part is the analysis of the present situation and problems of judicial application of excessive defense.This part is mainly divided into three sections.The first section is mainly analyzed from the perspective of cases.The author has collected a large number of cases from such authoritative websites as no-suit cases,Peking University magic,court judgment document network and so on.The second section,based on the previous analysis,introduces the court's judgment thinking on cases of excessive defense.The third section mainly points out the problems existing in the application of the excessive defense clause.The third part is the analysis of the causes of the dilemma.This part is mainly to point out the causes of the dilemma in the judicial application of excessive defense,mainly divided into two sections,respectively from the legislative perspective and the judicial perspective to elaborate.The fourth part is the coping strategy of the dilemma which is too suitable for defense.Mainly is the author to the judicial application erroneous zone put forward relevant Suggestions.