Risk Allocation Of Misidentification Of The Degree Of Malfeasance And The End Of Malfeasance In The Process Of Defense

With the occurrence of the "Kunshan anti-homicide case",etc.,there has been controversy over how to evaluate the nature of the subsequent counterattack when the wrongful situation is misrecognized during the defense process.China has thus produced two standards for determining illegality before and after the event.For example,in the Kunshan case,according to the traditional ex-post standard,the followup action of the defender obviously constitutes a hypothetical defense.According to the latest ex-ante standards,defenders constitute legitimate defense.The core of this article lies in solving this kind of defense misidentification,and who bears the risk of the result is more reasonable.This article is divided into six parts.The preface is based on the risk allocation problem mentioned above,and limits the scope of misrecognition based on whether the creation of risk can be blamed on the attacker.Furthermore,it is proposed that the defense misrecognition to be dealt with in this article is mainly limited to two types of misrecognition: the degree of illegality and the end of illegality.The first part mainly combines a number of real judicial cases that have already occurred,and summarizes three kinds of judicial conclusions that may appear when facing the above two kinds of defense misrecognition problems.The first one is the view of the recent majority tendency,which is regarded as justifiable defense;the second one is that when the entire behavior process time is short,the tendency is to deem the defense too proper;the third one is the hindsight,when the behavior is slightly separated,The tendency is regarded as general infringement.In the second part,it gives a detailed review of the current theories of Germany,Japan and China to deal with these two types of misrecognition.For example,Germany adopts the ex post standard for misrecognition of illegality in the defense process,but it also stipulates legal provisions that can exclude liability based on panic and other reasons.Japan ’s mainstream opinion on this continuous counterattack based on misunderstanding is the overall standard of recognition.Specifically,the first action and subsequent actions of counterattack are evaluated as a defensive action.At the same time,the second action causes a result that exceeds the necessary limit.In the end,as a whole,it is evaluated as an excessive defense.In our country,more and more scholars are calling for the awakening of the application of the proper defense system,advocating the conversion from the traditional ex-post standard theory to the ex-ante standard theory to determine whether there are prerequisites for the application of legitimate defense.It has to be said that this change in thinking is in line with the current trend of the standard for the identification of legitimate defense,but the author believes that under no circumstances can one blindly be inclined to protect the legal interests of defenders.In the third part,in order to better improve the perspectives of illegal identification before and after the event,the purpose and defects of these two standards are mainly discussed.The purpose of adopting the ex-ante standard is undoubtedly to identify the illegality from the perspective of the defender,so as to fully protect the legal interests of the defender.But this kind of standard first distorts the correspondence between factual law and lawlessness;secondly,in real cases,adopting this standard cannot accurately judge the real cognitive scope of defenders;finally,if blindly adopting ex ante standards,the third When the person clearly realizes that the attacker has lost the ability to continue to infringe,then the act of the third person to stop the infringement can only constitute an emergency avoidance.The purpose of the ex-post standard determination is to objectively and accurately measure the illegality caused by attackers and defenders.However,this standard,especially when the attacker sets a serious risk of violent lawlessness,also requires the defender to understand the lawlessness from a calm angle.It is inevitable that it is a demand for the defender’s ability to recognize.The problem with this approach is that it is not conducive to protecting the rights and interests of defenders,playing a proper defense role,and also not conducive to warning potential offenders.The fourth part is to learn from each other’s standards of illegality,and put forward the viewpoint of applying the two standards separately based on the degree of danger of legal benefits.The general idea of this method of identification is that when it is determined that the degree of infringement of legal interests is generally unlawful,it is sufficient to follow the original standard for subsequent identification.However,when it is determined to be serious illegality,it is necessary to determine the illegality from the perspective of the actor in advance.At the same time,in order to avoid that the prestandards may lead to the scope of illegal determination being too wide,a method to restrict it as a whole was proposed.Specifically,it is through subjectively defending whether the person has the meaning of continuous defense,combined with time and space factors,to determine whether the objectively illegal is obviously interrupted.If it is no longer possible to evaluate the two acts as a defensive act as a whole,then it is no longer possible to adopt a standard for determining prior violations based on the defensive person’s knowledge.The fifth part is a summary of the full text,and puts forward the four advantages of the application of law and benefit.