Study On The Identification Of Necessary Limits In Justifiable Defense

Article 20 in China's criminal law,regulations about the specific content of justifiable defense,respectively for self-defense and excessive defense and without excessive force to the rules,but seemingly simple rules have a lot of problems exist in the criminal law theory and practice,especially in cases involving the justifiable defense society,such as "shandong female homicides shame",will affect the public justice,will cause great debate in society.Among them,the most controversial issue is the necessary limit of justifiable defense.How to correctly identify the necessary limit of justifiable defense has become the key to correctly judge justifiable defense and the vital point to correctly distinguish justifiable defense from excessive defense.Because the law is not clear what is necessary to limit,what is considered necessary to limit,therefore scholars in order to solve this problem are put forward its own views,so the criminal law educational world about the theory of the limits of justifiable defence necessary mainly has four kinds,which are appropriate to say"basic","objective need to say","compromise" and "principle and the exceptions".From a large number of judicial judgments,it can be found that in judicial practice,most judges take the "compromise theory" as the general theory,as a standard to determine the necessary limit of justifiable defense,and the consequence of choosing this theory is to give rise to the phenomenon of "consequentialism".And this kind of phenomenon the reason would have been stubborn exists in the judicial practice,cannot effect a radical cure for many years,is not only a theory of the influence of the position,but has its profound root,from the Angle of the theory according to said,many people use "results with no value" as the theory of "only the results of the backer,but in fact it has essentially two difference;From the perspective of the referee,the referee is used to the "hindsight" perspective,but this perspective makes the necessary limit of the condition empty;From the perspective of the relationship between articles of law,many judges misunderstood the relationship between article 20,paragraph 2 and paragraph 3 of China's criminal law,and wrongly used the way of opposing interpretation.From the perspective of judges' attitude towards sensitive cases,the unique Chinese view of life and death and practical and rational thinking have influenced judges' way of thinking,making them tend to adopt an overly conservative attitude towards socially sensitive cases and mechanically pursue the so-called unification of legal and social effects.Based on the influence of the above factors,the identification of the necessary limit of justifiable defense in China has not been fundamentally solved.Therefore,this paper takes this as a research approach to try to analyze the existing problems and their causes in the identification of the necessary limit of justifiable defense in China,hoping to find a reasonable solution.This paper is divided into four parts: the first part is the preface.This part is divided into four aspects: firstly,the research background and significance are introduced.Starting from the social background and legal background,this paper briefly introduces the background of the research on the necessary limit of justifiable defense,and explains the significance of the research on the necessary limit of justifiable defense.Then comes the research review,which briefly sorts out the research status of the necessary limit of justifiable defense in Chinese academia,so as to accumulate materials for my own creation.The second is the research method,which explains the research method used in the creation of this paper.Finally,it is the innovation of the research.In order to solve the existing problems in the identification of the necessary limit of justifiable defense in China,this paper tries to put forward some new ideas and rules.The second part is about the necessary limit of justifiable defense of the legislative provisions and identify the dilemma.Necessary limit the theoretical connotation of justifiable defence is the unity of rights and obligations of ideas,and set the limits of necessity of justifiable defense system in China is a product of this thought,and in order to expand the use of justifiable defense system,lawmakers in the 1997 criminal law made a big change to its,namely,by increasing the "clear","big" and the provisions of paragraph 3to expand the use of justifiable defense system,but because of the legislation has not determined the necessary limit standard,so scholars put forward different theories to provide theoretical guidance for the judicial practice,and to "compromise" in judicial practice for speaking to the referee,It has formed the dilemma that the identification of the necessary limit of justifiable defense is too strict.The third part is the analysis of the causes of the dilemma in the determination of the necessary limit of justifiable defense.Analysis mainly from the following several aspects:self-defense theory of limits of necessity and existing disputes,the consequences of using perspective judgment "afterwards",and the judiciary excessively conservative mechanical unity pursue legal social effect as a result,the misunderstanding of "criminal law" in paragraphs 2 and 3 of article 20,out "results with no value" and "results",the relationship between the combination of these factors make the limits of necessity that has not been cured.The fourth part is about the necessary limit of justifiable defense to identify the way out of the dilemma.For justifiable defense limits of necessity and the analysis of the causes,this paper argues that in the future the cognizance of the limits of necessity of justifiable defense,needs to take "principle and" the doctrine of the theory as the general principles for guidance,and need to make some specific rules,including thinking path of "results-behavior" into "behavior-the" path of thinking,and using the "behavior" criterion,to amore reasonable evaluation defense defense behavior and the limits of necessity of justifiable defense,of course,also need to judge by raising the business quality,set up correct concept of justice to put an end to the phenomenon of "only the result of" further.