A Study On The Problem Of"Committing Murder"Under The Special Defense System

Since 1997,when the Criminal Law was amended to stipulate the term "committing a crime" in Article 20,paragraph 3 of the Criminal Law,the debate on the term "committing a crime" has never ceased,there are many disputes about whether its existence is reasonable or not and the content of its legal meaning.In theory,these disputes have caused some perplexity to the application of "committing murder" in practice,and the determination of "committing murder" has a direct impact on the issue of the offence of the defender in practice,although the Supreme People's Procuratorate has explained the meaning of the term "assault" in guiding cases,in practice,due to the complexity of the case,the conditions for the determination of "assault" can not be completely and directly applied,and the theoretical interface is still insufficient.This paper uses the method of combining theoretical research with practical analysis to sort out the problems about "committing murder".Starting from the necessity of the existence of the word "murder" in the special defense system,this paper analyzes the two opinions and concludes that although the word "murder" is not a professional legal term,however,it is necessary to make the scope of special defense system more complete.By sorting out and analyzing the academic views on the meaning of "committing murder" and interpreting the concept of "committing murder" issued by the Supreme Procuratorate,four characteristics of "committing murder" behavior are obtained,this includes the fact that the act is of a violent nature,that the act must seriously endanger the safety of the person,that the subjective aspect of the act is intentional and that the act is not necessarily carried out with a weapon.These characteristics provide a reference for the judicial practice to identify the "crime",but in practice,there are some problems about the identification of the "crime".This article through the judgment document net,has carried on the collation analysis to the related "the crime" the case,discovered in the judicial practice,when the defender carries on the defense by the illegal infringement belongs to "the crime" the reason,the court does not affirm mostly.This paper analyzes three cases in practice,clarifies the angle of determining "committing a crime" in practice,and finds out its shortcomings by comparing it with the standard in theory,it is concluded that there are some phenomena in practice,such as the result-oriented determination of "committing a crime",the court's determination of "committing a crime" being too rigid,and the rationality of neglecting the defensive action of the defender.In view of these three kinds of problems,this paper puts forward several suggestions,for example,the public security organ should be brave to exercise the right to withdraw the case if it is determined that the case belongs to the special defense situation under the premise of finding out the truth of the facts;The Prosecuting Authority can not only use the outcome as the basis for investigating the perpetrator for the alleged crime,and the judge should try the case as an objective and neutral person,not only judging the nature of the violation,at the same time,we should take into account the legality of the Defense Act,and try the case objectively and comprehensively.The implementation of these recommendations is conducive to protecting the legitimate rights and interests of defenders and promoting judicial justice.