Defining The Reasonableness Of Resistance To Domestic Violence

In order to get out of their predicament,some victims who have suffered from domestic violence for a long time choose to hurt or kill the perpetrators.Such cases are usually treated as intentional crimes.This type of case is different from the case of intentional injury or homicide,and its particularity has attracted the attention of public opinion.In recent years,there have been opinions that justifiable defense can be used to defend it,but theoretically there are disputes over the reasonable limits of domestic violence.The "Opinions on Handling Criminal Cases of Domestic Violence According to Law" affirmed the defensive factors to counter domestic violence,and determined whether the defensive behavior "obviously exceeded the necessary limit" should be based on the need to stop and protect the defender from illegal acts of domestic violence.Based on the severity of the domestic violence being committed by the perpetrator,the cruelty of the means,the environment in which the perpetrator is exposed,the degree of danger faced,the means used to stop the violence,the extent of the damage caused to the perpetrator,and the severity of previous domestic violence Comprehensive judgment.When judging the necessity of defensive behavior,the special situation of the victims of domestic violence has a key role as a specific factor in the judgment criteria.Regarding how to determine the intensity of domestic violence,it is not possible to make a judgment based on a single violation,but to evaluate the severity of past domestic violence and make a comprehensive judgment,that is,different identification standards for general illegal violations need to be adopted.This article is divided into three parts.The first part analyzes the nature and different types of domestic violence,and further specifically analyzes the factors that identify domestic violence as a legitimate defense limit in the field of vision.The "Opinions on Handling Domestic Violence Cases According to Law" issued by the two high and two ministries gave guidance on the determination of legitimate defenses to counter domestic violence.This article uses the point of entry of the "Opinions" to explore the general method of judging the limit of defense in the field of domestic violence,analyzes the manifestation and specificity of domestic violence in combination with cases.Domestic violence has the characteristics of concealment,periodicity and cruelty.When judging the intensity of unlawful violations,it is necessary to start from the perspective of the victim and combine the intensity of several domestic violence in the past to comprehensively judge the intensity of domestic violence facing the current,so Judging the strength limits of rebellious behavior.The second part: Tracing the source and analysing the justification of defense behavior.The criterion for judging the defense is directly subject to the criminal law theory's stand of defense.It is the concrete development of the principle of the justification of defense.The defense theory based on the theory of emergency power is constructed on the basis of personal supremacy liberalism,which is inconsistent with our country's state theory.The interest balance theory is more suitable to be modified to explain the legitimate defense clauses in our criminal law.Through the inductive analysis of different doctrines about the justification of illegal defense,to determine the connotation of justified defense,and in conjunction with China's justified defense clauses,to explore the basis of justification of this defense behavior,and to lay the next step to determine the general determination of the defense limit in specific situations.The third part: through the analysis of the existing theories to discuss the meaning and definition of the necessary defense justification,from the perspective of comparative law,introduces the defense limit conditions in German and Japanese criminal law,including the judgment standards and perspectives of the necessary limits of defense behavior.Based on China's legitimate defense clauses,and combining some typical cases involving domestic violence,this article extracts the general principles that should be adopted to judge the necessary limits of defense behavior in the field of domestic violence.Domestic violence occurs within the family.This special scenario means that there is a special ethical relationship between the perpetrator and the victim,and they have mutual protection obligations.When using violence to resist,ethical restrictions should be considered.