Research On The Issue Of Special Defense Rights

The concept and understanding of article 20,paragraph 3,of the present criminal law of China,combined with the legislative intent and the principle of legislative interpretation,the author thinks that paragraph 3 is general and special in relation to the preceding two paragraphs.Defensive behavior necessary limit requirements,belong to a restricted no excessive defense rights,three content together constitute a legitimate defense system.However,it is difficult to determine the status quo of justice in China,which is related to the lack of legislative defense of the proper defense system.Although there are many achievements in legal research on proper defense,the academic community still does not have a complete conclusion.The second part of the analysis of the causes of special defense analysis: the "attack" understanding,should be with the suffix attributive "other serious endanger the safety of violent crimes" before and after the formation of consistency on the basis of understanding."Assault,robbery,rape,kidnapping" also has a "means to say" and "charges" of the argument."The murder,robbery,rape,kidnapping" also has a "means" and "charges" argument.I believe that "murder,robbery,rape,kidnapping" is a serious threat to personal safety of the typical means of violence,and elaborated a few reasons;"violence" refers to the direct role of the victim's body,the physical body of the victim forced Force and destructive power,so that it can not resist or can not resist the power;"violence" has a certain objective exposure,to determine whether the exercise of special defense rights should be violent means and criminal purposes,violations of the legal benefits combined analysis;"serious endanger personal safety" should be serious "kill,robbery,rape,Kidnapping " quite,but also has a strong time urgency;Chapter III for the special defense of the time elements were analyzed,for the determination of the beginning of the infringement behavior,I agree to adopt the "direct danger ",the end of the time for the infringement.The judicial trial should stand at the scene and assess the necessity of carrying out the special defense right in advance.In the fourth part,it analyzes the difficult problems in the application of special defense justice: it is necessary to analyze the subjective elements of special defense,and the defenders need to have the intention of defense,but the defense cognition only refers to the general recognition Level of knowledge;on the "inverse defense" problem,the dominant point of view of China's criminal law is negative defense.I believe that improper defense into illegal attacks,the original infringement can exercise the "anti-defense" right,where the "anti-defense" is actually a new lawless infringement."Anti-defense" was established,you can learn from some relevant foreign regulations,such as the United States to violence against the "violence" refined into "fatal violence" and "non-fatal violence." The author of the special defense right in the "anti-defense" right to take a negative attitude,while that negative in the special defense of violence against the "anti-defense" right,and defender commitment to defensive unfair legal responsibility is not contradictory.Finally,other violent crimes that seriously endanger personal safety mainly refer to other serious crimes that violate personal safety in addition to the use of "murder,robbery,rape,kidnapping" violence.But because of "murder,robbery,rape,kidnapping" means that the charges that there is not a complete conclusion,for other serious endanger personal safety can be used for expansion of interpretation,but also need criminal law or judicial interpretation for clear.