Research On Justifiable Defense In Domestic Violence

In the judicial practice,almost all the cases where females’ self-defend again their marriage partner’s domestic violence that leads to fatal outcomes are recognized as intentional homicide,not legitimate defenses.Such judicial decisions are against fairness and justice,and they are contrary to the spirit of legitimate defense.In order to solve the problem that it is difficult to apply traditional legitimate defense theory to the cases where domestic violence are involved,this study starts from real cases from existing in judicial practice and discuss from four aspects:Chapter 1 introduces the cases of Chinese women self-rescue after suffering domestic violence,and the court did not apply the traditional legitimate defense theory in their judgment.The three typical cases are all criminal cases that women killing husbands during domestic violence.In judicial practice,the courts decision were intentional homicide,and the rights of battered women were not taken into consideration.Chapter 2 analyzes the causes,time and limits in traditional legitimate defense theory,and points out that the reasons of traditional legitimate defense theory cannot be applied to the cases of female defense against domestic violence.Usually there were no illegal infringement at the time of defending,which means the violence were not "in progress" and the level defense might have exceeded the limit by law and had caused significant damage.Therefore,in these case the traditional legitimate defense cannot be applied,and it is necessary to establish a new way for women to apply legitimate defense against domestic violence.Chapter 3 introduces the theory of Battered Women Syndrome in the UK and US legal systems and the Expectation Possibility Theory of the civil law countries.After detailed analysis,it is suggested that the theory of Battered Women Syndrome can be applicable to the judicial practice in China to provide a theoretical basis for judging the application of women legitimate defense in domestic violence.Chapter 4 summarizes the ways to determine legitimately defend in domestic violence and addresses the issue related to that.The judgement should mainly based on the cause,time,intention,and the limits of the defense.Finally,going back to the real cases,it is suggested that domestic violence is a continuous and complete process.During the whole process,women actions that leads to injury or death to their husband are only to stop the illegal infringement and should be recognized as legitimate defense.This brings a new way for women suffering domestic violence.