The Problems And Solutions Of Judicial Identification Of Special Defense

Since the addition of the criminal law in 1997,the judicial application rate of the special defense clause has been low,the application effect is not good,and the application prospect is uncertain.However,in recent years,from "Deng yujiao Case" to "Yu huan Case" to "Kun shan Case",it seems to indicate that the judicial application of special defense provisions is on the right track.In fact,it is not to say that the prospect of judicial application has not developed to a good direction in recent years,but the application rate has not made a breakthrough on the whole,and from a local point of view,there is still the danger of over-correction.First,overall,judicial used result oriented,light results belong to the jurisdiction of paragraph 1,results belong to the jurisdiction of the 3rd,strict division in charge of both limit,make the results have a detached position,not only weaken the value of itself,also led to a confrontation between paragraphs 1 and 3.Secondly,from a local point of view,even for the identification of infringement or defense,judicial personnel often fail to grasp the core of the problem,or cognitive errors occur,resulting in unacceptable results.Finally,based on the practical problems of Special defense,this paper is divided into four parts according to the logical framework of "finding problems--analyzing problems--solving problems".The first chapter focuses on "finding problems" and "analyzing problems",while the second,third and fourth chaptersmainly focus on "solving problems".In chapter 1,94 special defense-related cases are obtained from the index of "Wu Song" database,and 70 valid samples are selected.On the one hand,through the macro data analysis of 70 sample cases,the problems concerned by judicial practice are found,and two conclusions are drawn: first,the space of judicial application is too narrow;second,judicial cognition is biased and judgment is seriously deficient in reasoning.On the other hand,16 samples of "special defense should be recognized but not recognized" and 1 sample of "special defense should not be recognized but not recognized" were screened out.Through sorting out and summarizing the controversial focus of 17 samples,it was found that judicial practice had biases in the recognition of both objective and subjective aspects of special defense.Finally,it summarizes the three kinds of objective and subjective problems in the special defense judicial recognition,and further explains the status of the problems and analyzes the causes of the problems.The second chapter discusses the identification of defense premise in special defense.The chapter focuses on the controversial issues in the micro analysis,including the end time and behavior of the illegal infringement.When discussing the ending time of illegal infringement,this paper first sorted out the current mainstream views,explained the views agreed with in this paper,and then verified through "Kunshan anti-killing case" and "Laiyuan anti-killing case",and drew a conclusion.In discussing the violation behavior,from the external and internal two aspects analyzes the form and harm of illegal violation should have,"do violence" is mainly discussed in this behavior,combined with the empirical data summarizes the connotation and features,in addition,also introduced the objective and subjective thought inconsistent situation,and come up with solutions.The third chapter mainly expounds the determination of the defender's subjective intention.Based on the micro analysis,it is concluded that the factors such as the presence of disputes in advance,the presence of fights,the choice of defense tools and the preparation time of the defense tools have greatly influenced and even determined the determination of the defender's subjective intention in practice.In judicial practice,most cases in which the defender subjectively intends to harm will not recognize the existence of defensive intention,either ignoring the defensive intention directly or willfully turning a blind eye to the harm.Defence intention of this article divided into "defense intent and damage intentions clear" and "defense intent and damage intention coexistence" two kinds of situations,the former is mainly discussed the unilateral fights back with proper distinguish problem,which discussed the fault form and weapon damage deliberately wrong,preparation tools such as case defence intention identified two aspects.The fourth chapter discusses the most concerned problem of Special defense,that is,defense limit.First of all,there are two views of "limited" and "unlimited" in the cognition of special defense limits,and two theories of attention regulation and exception regulation arise from this.On the basis of agreeing with the prescriptive theory of attention,this paper expands the reasons for the establishment of prescriptive theory of attention regulation.Secondly,with regard to the choice of defense limit theory,this paper holds that the knowledge of Special defense limit is helpful for the practical practice to choose the identification standard of the limit.Then,this article through the case comparison to draw the judicial practice to use the corresponding theory,based on this analysis of the disadvantages of the corresponding theory and reiterate the necessary to say the reasonable point.