Research On Misunderstandings And Countermeasures Of The Judicial Cognizance Of Justifiable Defense

Justifiable defense is an important regime in Chinese criminal law,which is a private right to remedy for citizens’ resistance to illegal act.In recent years,some cases about justifiable defense have been reported by the media,which became a hot topic in the country.The masses and scholars focused on the case,which led to a fierce collision between the public’s simple sense of justice and the judicial decision of judicial organ.Every so often it appears in the public eye.Chinese criminal law has made relatively complete provisions on the justifiable defense system.From the point of view of legislation,the current criminal law has made a major revision to the justifiable defense system,on the basis of inheriting the content of the 1979 criminal law,which is aimed at encouraging citizen to actively fight against illegal act to protect their legitimate rights and interests from illegal infringement and realize social justice and guarantee judicial justice.However,the determination of justifiable defense is unsatisfactory in judicial practice,and some cases that should be considered legitimate defense have not been quasi-certain,which indirectly wastes judicial resources.The article selects five typical cases involving legitimate defense in recent years,and uses them as the starting point to point out the misunderstandings of legitimate defense in judicial practice,analyze the reasons of misunderstandings,and propose corresponding countermeasures.The article is divided into three parts.The first is a misunderstanding of judicial cognizance of legitimate defense.The identification process of the cases is mostly difficult and tortuous from the five typical cases involving legitimate defense selected in the article,which reflects that there are many problems about judicial cognizance of legitimate defense in judicial practice,which are specifically reflected in the misunderstanding of the "qualitative" and "quantitative" of legitimate defense.The second is to analyze the reasons for the misunderstanding of judicial cognizance of justifiable defense.There are both subjective factors,social factors,and legal factors.From the point of view of subjective reasons,it includes a presumptive guilty mode of thinking,a wrong measure of legal interest,a sympathy for the weak and the tendency to convict during the investigation and prosecution stage;From the social point of view,including pressure from various parties such as complaints,petitions and public opinion pressure,"stability maintenance" pressure,pressure on wrongdoing and accountability.From the legal point of view,including the provisions of the law itself are more principled and lack of guiding cases.The third is the countermeasures to solve the misunderstanding of judicial cognizance of justifiable defense.As far as subjective factors are concerned,judicial personnel should adhere to the judgment criterion of "perpetrator behavior",accurately grasp the relationship between defense behavior and defense results and improve the professional quality of judicial personnel;As far as social factors are concerned,judicial personnel should insist on exercising independently Judicial power,accurately locate the legal and social effects of judicial decisions and establish effective incentive mechanisms.As far as law factors are concerned,The Supreme People’s Court and The Supreme People’s Procuratorate should formulate appropriate judicial interpretations of justifiable defense,and issue appropriate guiding cases of p justifiable defense.It is not an overnight but a gradual process to handle and resolve of the issue of judicial cognizance of justifiable defense,not only requires concerted efforts of the general public and national staff,but also the practical and theoretical communities.