Research On Difficulties In Judicial Determination Of Justifiable Defense

As a traditional problem in the theory and practice of criminal law,justifiable defense plays an important role in criminal law theory and judicial recognition.But in recent years,the Supreme Court and the Supreme Procuratorate have issued the guiding cases of "justifiable defense",which to some extent reflects that the "justifiable defense" of our country is still flawed.Through the analysis of the two guiding cases,it is concluded that the difficult problems in the determination of justifiable defense mainly focus on the judgment of the limit of defense,the time point and scope of "unlawful infringement",the determination of "persistent unlawful infringement",the understanding of "perpetrator" and "other violent crimes that seriously endanger the safety of the person" referred to in Article 20,paragraph 3 of the Criminal Law.Based on the in-depth exploration of the above difficult issues,the paper combines the academic viewpoint and the opinions of the Supreme Court and the Supreme Prosecutor to sort out the criteria for the identification of these difficult problems.The determination of justifiable defense must put an end to the "results-only theory",according to the " double condition theory",adhere to the independent relationship between "significantly exceeds the necessary limit" and "significant damage" based on the "dual-condition theory",and judge whether the " defense limit " is too limited by "equivalent theory".According to the "comprehensive theory" and "excluding danger theory",the starting point and the ending point of the unlawful infringement are defined respectively.Under the premise of attaching importance to the urgent requirement of the unlawful infringement,adhere to both "illegal and criminal behaviors" and "actual and dangerous behaviors" can establish a position of unlawful infringement.For the judgment of "perpetrators" and "other violent crimes that seriously endanger the safety of the person",it is necessary to synthesize the specific cases and comprehensively investigatethe cases based on their basic characteristics such as violentness,serious harm,and the uncertainty of criminal means.The establishment of justifiable defense system in the legislation is to highlight the value orientation of "just don’t have to succumb to unjust",encourage "legitimate to unlawful confrontation",and defend the defendant’s legitimate rights and interests from continued infringement.However,the establishment of the system,on the other hand,will also become a pretext for the defendant to excuse himself from the crime.In order to grasp the best balance between the protection of human rights of defenders and the protection of the lawful rights and interests of unlawful infringers,we should adhere to the correct position in judicial determination and resolve difficult issues as soon as possible,with a view to proposing effective measures to make justifiable defense truly play its due function.