Research On The Judicial Application Of Justifiable Defense

The justifiable defense system is a very important legislative regulation for the state to protect citizens' rights.However,the application of the justifiable defense system in judicial practice is far from ideal.Once cases involve justifiable defense,most of them will cause widespread concern of the public.The main reason is that the practice of this system is related to the public's own rights and interests.Therefore,when the judgment result of the judicial organ cannot be approved by most of the public,strong public opinions will often be aroused.Therefore,the legal application of the justifiable defense system has become a key and difficult issue in current judicial practice.In view of the problems existing in the application of the justifiable defense system in judicial practice,the Supreme People's Procuratorate announced the 12 th batch of guiding cases on December 19,2018,which are four cases involving justifiable defense that have caused widespread disputes in the society.The Supreme People's Procuratorate also put forward guiding suggestions on some controversial issues,which are of great significance for judicial organs to fully understand the application of the justifiable defense system.This article is divided into seven parts:The first part is an introduction.This part introduces the research background and significance of the thesis.Due to the difficulties in the judicial application of the justifiable defense system,it leads to the dissatisfaction of the public,which in turn leads to arguments in the academic circle.It tries to help the judicial application of the justifiable defense system through theoretical and practical research.The second part is an overview of the justifiable defense system.From the development of the justifiable defense system,the legislative intent of legislators is to encourage and support the application of the justifiable defense system,and also to show the rationality of China's justifiable defense system as a reason to exclude crimes in comparison with foreign systems.The third part is the performance of the dilemma in the application of justifiable defense.Based on the analysis of the current judicial application of justifiable defense in criminal cases in Henan province from January 1 to December 5,2019,the problems existing in the application of justifiable defense system by judges can be found out from the small point of view,which are usually manifested in the fact that the identification of justifiable defense is too strict to avoid the application of justifiable defense by means of mutual blows,and are mostly identified as intentional injury crimes under the influence of "only result theory".The fourth part is the misunderstanding of justifiable defense system.The reason why judges apply is that they have misunderstood the legal provisions of the self-defense system itself,mainly including the understanding of "ongoing unlawful infringement" and "causing significant damage beyond the necessary limit".There is a deviation in understanding the application of the time requirement,cause requirement and limit requirement of the justifiable defense system.The fifth part is the analysis of the constitution conditions of general justifiable defense.In this part,the problems arising from the misunderstanding of the constituent elements in the judicial application of the justifiable defense system are mainly analyzed and solved according to the previous part.The constituent conditions of the general justifiable defense are specifically analyzed from the aspects of the rights and interests protected by the justifiable defense,the causes of the justifiable defense,the subjective mentality,the time conditions and the limit conditions,and the correct understanding in the judicial application is put forward according to the guiding significance of the 12 th batch of guiding cases of the Supreme Court.The sixth part is the analysis of the constituent conditions of special justifiable defense.There are differences between special justifiable defense and general justifiable defense in protecting rights and interests and limits.According to the guiding significance of the 12 th batch of guiding cases of the Supreme People's Procuratorate,this paper puts forward a correct understanding of the cause of special justifiable defense in judicial application.The seventh part is the judicial application suggestions of justifiable defense.On the basis of solving the basic constitution of justifiable defense,this paper puts forward some suggestions on the judicial application of justifiable defense.First,it advocates that judicial organs can strictly define justifiable defense and fisticuffs,and can deny the application of justifiable defense only when the mutual agreement of fisticuffs is reached.The act of instant counterattack when subjected to unlawful infringement is defensive in nature,and cannot be simply and rashly recognized as intentional fisticuffs and negated as justifiable defense.The result cannot be directly defined as a fight to avoid being influenced by the result-only theory.The second is the distinction between justifiable defense and intentional crime.In judicial practice,most cases of justifiable defense are finally identified as intentional crimes.The author analyzes and distinguishes the intentional acts of justifiable defense and intentional crime and their behaviors.Finally,I hope that the judges can balance the influence of extra-legal factors in the judgment process,and not be too constrained by the outside world and unilaterally pursue social effects and violate the fairness and justice of the law.Through the research on the judicial application of justifiable defense,it is hoped that it can provide help for the judicial organs to apply justifiable defense more reasonably and make the justifiable defense system glow with real brilliance.