New Perspectives On The Judgment Of Excessive Defense

In the face of illegal infringement,citizens use self-relief to fight against the infringement in an emergency,which is the legal right of self-defense granted to citizens by law and the embodiment of the simple justice value of "no need to give in to the wrong",which is the system of justifiable defense.But in the justifiable defense mechanism,how to decide whether the defense is too much in the process of defense,and under what circumstances it is too much,has not been a unified point of view for a long time,but a wide range of differences,and there are even a variety of disputes between the theoretical view and the practical view in the trial.In recent years,a number of hot motions involving excessive defense judgment have once again attracted the attention of the public and public opinion,bringing back the difficult problem of excessive defense judgment to the public view.Therefore,it is urgent and necessary to correctly judge whether the overreaction constitutes and to analyze the demarcation between justifiable defense and overreaction.This paper discusses the judgment of over-defense from four angles.The first two parts respectively analyze the judgment of over-defense from the objective and subjective aspects,from the objective to the subjective,from the illegal to the responsible,from the behavior to the fault,anddiscuss the basic judgment criteria of over-defense from the unified perspective of the subjective and objective aspects.The third and fourth parts respectively explain how to judge the excessive circumstances under the circumstances of cohabitation with defense act and emergency risk avoidance stipulated in the third paragraph of article 20 of the criminal law.In the first part,excessive behavior is taken as the logical starting point,and the judgment standard of excessive behavior is whether the behavior exceeds the foreseeable possibility of the average person when the defense behavior is implemented.That is to say,the degree of infringement is related to the limit of defense behavior,and the average person has predictability of the degree of such correlation.When the degree of action exceeds this predictability,it is clearly beyond the necessary limit.The principle of illegal obstruction behind it is based on the theory of superior interests of defending hostages without value of results.After analyzing the defense result,it is concluded that the result is out of balance due to excessive behavior,which belongs to the behavior and cannot be separated from the defense result.The defense result and defense behavior are an integral whole.The second part classifies the forms of transgression under the circumstances.According to the dichotomy,intention and fault can exist in the form of fault of excessive defense.When the person who is defending carries out the act of defending,the intention of defending coexists with the intention of inflicting harm.The actor may also be overconfident or negligent about the limits of his actions and the limits of his results due to his wrong understanding.The third part of the interpretation of criminal law under paragraph3 of article 20 of the practical nature of analysis,based on the first part of this article put forward to foresee possible whether than generalpeople feeling when the standard of judgment,so as to derive the substantive provisions under paragraph 3 of article 20 is still has the limits of necessity and defense behavior,paragraph 3 belongs to the nature of attention.Moreover,it is considered that even in the case that the defense can be used to cause death or heavy casualties to the infringer,there is still a large amount of undue occasion,that is,the application space of undue judgment still exists in the occasion of article 20(3)of the criminal law.In this conclusion,how to determine the time limit of relevant defense behavior is analyzed to determine whether the situation is too serious.The fourth part explains the excessive judgment under the special occasion when the defense behavior and the emergency risk avoidance conjoin.This paper analyzes the concurrence of defensive behavior and offensive behavior and defensive behavior by enumerating several situations in the concurrence of defensive behavior and defensive behavior.Then,from the perspective of differentiation theory,on the premise of whether the supplementary elements are exceeded or not,the thesis analyzes whether the overreaction plot is true or not on the two occasions of the concurrences of the emergency hedging behaviors and defense.