Research On Judicial Identification Of Excessive Defense

Excessive defense is an important stipulation in China's criminal law,and the standard of recognizing excessive defense as the core of this stipulation has always been the focus of legal theory and practice.Although China's criminal law has made relevant provisions on excessive defense,there are still disputes about the identification standard of unlawful infringement,the boundary and identification standard of defense and the subjective liability form of excessive defense.In recent years,cases involving the right to defense have attracted increasing attention from the public.A number of controversial cases have appeared in public view,such as the "intentional injury case of YuHaiming" in the guidance case released by the supreme people's procuratorate in 2018 and the similar "intentional injury case of HuangHailong" in Heilongjiang province.Based on the debate focus in the trial process of the above two cases,combined with the legislative purpose of the defense system,for the determination standard of illegal infringement,we should adhere to the definition of the scope of illegal infringement with restrictions,and determine the nature of illegal infringement from three aspects of social harmfulness,urgency and detergency.For the issue of defense boundaries and identification standards,a comprehensive judgment should be made by taking into account the intensity of the unlawful infringement,the environment in which the unlawful infringement occurred,the strength comparison between the two sides,as well as the ability and means of defense and other factors.In the form of excessive defense,make sure the basic facts of the offender shall bear criminal responsibility,see the defense after the happening of the result of the damage is known,finally to determine whether a person realize his defense behavior obviously exceeds the limits of necessity,to avoid the subjective crime of excessive defense form of judgment.