On The "necessary Limit" Of Our Country's Legitimate Defense

In recent years,with the emergence of online media and the acceleration of the rule of law,more and more cases with regard to justifiable defense have come into people's eyes in the environment featuring judicial publicity,arousing heated discussion and thinking from all walks of life.The Yu Huan case has rapidly aroused the public attention since it was exposed by media in 2016.People were generally dissatisfied with the judgment of the first trial,which eventually aroused the attention of the Supreme People's Procuratorate and the top prosecuting authority dispatched prosecutors to Shandong to investigate the case.The Yu Huan case is a very typical case,from which we can get a glimpse of the status quo of the current system of justifiable defense in China.On the one hand,the judiciary's attitude towards justifiable defense is too prudent.A considerable number of behaviors of justifiable defense were judged as excessive self-defense and the defendants were finally convicted of crimes such as intentional assault.On the other hand,the media and the public often refuse to accept the verdicts based on the concept of praising virtue and punishing vice.There is a cognitive difference between the two parties regarding the necessary limits of justifiable defense,resulting in poor social effects of the verdicts.Generally speaking,the justifiable defense cases determined by the judiciary authorities are often cases where there are disproportionate strengths between the two sides,the unlawful offenders have serious fault,there are no serious defensive results,and the defensive measures taken by the defender are relatively restrained.However,there will usually be great differences of opinion when it comes to other cases.In the face of such a situation,it is of particular importance to carry out researches on the necessary limits of justifiable defense.Necessary limits are the criteria for judging whether the defense rights have been abused and the standards for distinguishing between justifiable defense and excessive self-defense.Through clarifying the criteria for determining the necessary limits of justifiable defense and analyzing the problems exposed in judicial practice,the paper analyzes the reasons for the current dilemma and puts forward relevant measures to improve China's justifiable defense system.The paper consists of four chapters.The first chapter focuses on the judgment criteria of the necessary limits.It is concluded that the necessary limits should be determined from three perspectives,namely the intensity of unlawful infringement,the urgency degree of unlawful infringement and the rights of unlawful infringement,based on adhering to the three principles.In the second chapter,through the analysis specific cases,the paper points out the dilemma in the judicial practice: In the judicial practice,only a small proportion of defense acts are judged as justifiable defense,and the present situation of judicial practice is relatively embarrassed.There are mainly three problems.First,the court judge path after the event is adopted in most cases.Second,the weighing of legal interests is simplified and consequentialism gains the upper hand.Third,excessive self-defense is deliberately criminalized.In the third chapter,reasons of the above judicial dilemma are analyzed.The internal reasons are that the legal interests of defenders are equally compared with the legal interests of the unlawful offenders,we only pay attention to objective criteria when analyzing the situation of the defenders,there are misunderstanding of the laws and related concepts.Courts should consider extra-judicial factors when handling cases,which affects the impartiality of court adjudication.That is the external reason.In the fourth chapter,corresponding countermeasures are put forward to get rid of such a dilemma.First,China's attitude towards the justifiable defense system is clarified.The legislative features that strict criteria should be set to convict defenders of excessive self-defense while lenient standards should be established to judge justifiable defense are pointed out.With such features as the standpoint,the author comes up with measures such as paying more attention to the defender's legal interests,correctly understanding the law,setting special accusations etc.