The Appliance Of The Hierarchy Theory Of Justifiable Defence

In recent years,the judgment of excessive defense is controversial in the theory of criminal law and judicial practice.However,it is mostly based on a certain point in justifiable defense or makes a judgment as a whole,and lacks the hierarchy and order of judgment under the macro framework.In this paper,the excessive defense in our country's theory of class to construct the positioning theory also provides a convenient for practical operation frame structure: constitutive requirements(the victim a self responsibility)whether there is any violation behavior whether to belong to the children's defense behavior ever limit results whether limit responsibility behavior and the result is a causal relationship.In addition to the introduction and conclusion,this paper mainly consists of three parts,specifically as follows.The first part mainly carries on the depth analysis to our country's justifiable defense present situation.At present,in judicial practice,the main reason why we are too strict in the identification of justifiable defense and too wide in the identification of excessive defense lies in the deep influence of the theory of legal interest measurement and the principle of narrow proportion,and the lack of judicial judgment mechanism under the influence of the priority of maintaining stability,the concept of life and death and the practical thinking.The theory of legal interest measurement has been widely adopted by judicial practice due to its highly individualized skills,but it ignores the means,status,situation and number of defense personnel of both sides,and puts forward unreasonable demands on the defensepersonnel.At the same time,the special proportion principle in self-defense applicable scope is very narrow,belong to the emergency power system affected by the weakest link,only can be applied to serious unbalance of justifiable defense case,justifiable defense maintenance by first nor individual legal interests,but defense from others illegal mandatory legal status,freedom and without introducing special proportion principle,will therefore deny the appropriateness and necessity of defensive behavior,lead to citizens can only be destroyed or implement ineffective defense behavior,this obviously does not comply with article 33 and article 51 of the constitution for the citizens' freedom and equality laws governing the relationship between the parties.Method the proportion of profit measure theory and the special principles for the theory itself cannot be applied to the problem of excessive defense judgment,at the same time should change the existing mechanism of judicial judgment,and priority of national stability concept,and establish a set of autonomous mechanism of judicial judgment,namely,to establish a set of corresponding to the law and lawlessness evaluation mechanism of judicial judgment.The second part mainly normalizes the justification of justifiable defense in China,and establishes a new dualism,that is,the principle of protecting legal interests from the perspective of rights and the justification of justifiable defense from the perspective of infringer.For the traditional dualism of order maintenance principle or method forcefully to corroborate the principle of criticism,negative confirmed by justifiable defense method and the rationality of the prevention function,method confirmed principles both from inside the specification and on the meaning of philosophy of law has its own limitations,and based on the perspective of the rule countries against the basic idea of people-oriented.Meanwhile,from the perspective of rights,this part proves the rationality of the principle of legal interest maintenance and the justification of justifiable defense from the perspective of infringer.As a right of citizens in modern countries,justifiable defense should return to the concept of rights.The violation of rights is neither justified nor able to bring real welfare to the society,so the response to such ACTS is not dependent on the calculation of benefitsbut is naturally justified;Secondly,for the infringer under the perspective of the legitimation of justifiable defense according to,in general,for "violation" others' legitimate rights and interests of behavior by the national law,but in this case in the justifiable defense from the offender legal sanctions,the encouragement to support at the same time,this means that in this case,the "law for protection setting by the infringer law barriers have been removed within a certain range,it not only conforms to the characteristics of legislation in our country,also can solve the problem of excessive defense judgment limits.The third part mainly discusses the hierarchy inspection mechanism of excessive defense in justifiable defense in detail.Firstly,taking the illegal infringement under the preset defense device and extreme insult as an example,the victim should answer for himself at the constitutive requirements stage to exclude the illegal,not enter the illegality judgment,and complete the judgment of the first class.Secondly,from the macro and micro perspective of the illegal infringement of the standard judgment,to provide a basis for the illegal class screening;Again,for the behavior limit,the limit and behaviour limit and the causal relationship between the three results limit specifications in the sense of identifying of objective lawlessness,at the same time from the known factors,consistent,and the behavior of the binary value Angle no value and results in excessive defense not only can be made up of negligence and indirect intention,and also can be a direct intentional,Finally,in the responsibility stage,because it is not the subject of this paper,so only a simple argument.