| Article 20,paragraph 3,of the Criminal Law of our country stipulates that "if the acts of defense are taken against crimes of assault,homicide,robbery,rape,kidnapping and violent crimes that seriously endanger personal safety,resulting in casualties of unlawful infringers,they shall not be unduly defended and shall not be held criminally liable".This provision is called special justifiable defense in the field of criminal law in our country,because it is a supplementary provision to the justifiable defense clause.In several cases of unlawful infringement of this provision,defense is not an undue result,and it is an infinite defense.Homicide,robbery,rape and kidnapping in the provisions of the Criminal Law have clear corresponding charges,but "assault" has no independent charges corresponding to it.According to the method of system interpretation,"assault" should be juxtaposed with murder,robbery,rape and kidnapping.It should be violent acts that seriously violate personal safety similar to these four acts.Therefore,how to deal with them correctly Understanding the meaning of "murder" is of positive significance to the application of special justifiable defense in judicial practice in China.Through the analysis and clarification of the meaning and characteristics of "murder" and related extension issues,this paper aims to provide reference for our judicial staff to identify "murder" in practice.As for the introduction part,it introduces the background of our country’s incorporation of special justifiable defense into criminal law,the current situation of our country’s cognizance of "murder" in judicial practice,and the significance of clarifying the connotation and extension of "murder" in guiding judicial practice.It also puts forward the author’s interest and innovation in the study of "murder".Chapter 1,As an "assault" that can be indefinitely defended,it should be limited.By comparing the meaning of "murder" in the field of life and in the criminal law system,we draw the conclusion that "murder" should be scientifically limited.To prevent the two tendencies,we should neither limit it nor limit it too much.Chapter 2,summarizing the theoretical controversy of the criteria for determining "assault".By summing up the research results of the mainstream doctrine on the standard of identification of "assault" since 1997 when the Criminal Law included "assault" in the legal provisions,this paper analyzed the rationality and unreasonability of each theory,so as to pave the way for the author to put forward his own views later.Chapter 3,summarizing the judicial standards for the determination of "assault".This paper will select the doctrines adopted by different stages of judicial practice in the course of identifying "perpetrators" in the past 20 years or so,and analyze the directional significance of different doctrines in judging judicial practice horizontally and vertically,and then make an in-depth analysis of these phenomena,in order to explain the criteria for identifying "perpetrators".Chapter 4,puts forward the proper criteria for the determination of "assault".This paper summarizes the characteristics of "assault" and explains these characteristics from the viewpoints of subjective and objective illegality,invaluable results and invaluable behavior,and further interprets these characteristics with recent hot cases.Chapter 5,the special problems of the identification of "assault" are explained.Whether the defender can defend indefinitely is the focus of this chapter.Finally,the author summarizes the views of the author in order to provide positive guidance for judicial practice. |
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