Research On The Standard Of The Limitation Of Justifiable Defense

In recent years,disputes about justifiable defense cases emerge in endlessly,and the standard of justifiable defense limit has always been the focus of academic discussion.It is undeniable that there are many judicial chaos over the years,so that self-defense and excessive defense are rarely identified in the judgment,and self-defense,such a brilliant system,is often shelved in practice.With the improvement of social legal awareness and the rapid development of Internet media,in recent years,a number of defense cases have spread rapidly to the Internet,causing unprecedented public debate,and have been able to get a fair trial under the attention of the people all over the country.However,this does not mean that China’s justifiable defense system has been completely liberated,the inherent problems still exist,and the new problems can not be ignored,which reminds us that the legal people should always pay attention to them.In order to make the research closer to the legislative intent,this paper starts from the legislative changes of justifiable defense system.By comparing the previous amendments to the provisions of self-defense system,it is found that the self-defense provisions are always in the perspective of protecting the defender and encouraging the defender to defend in the process of continuous improvement,which will be the fundamental foothold of all the researches on self-defense system.Then extended to the problem of defense limit,through the analysis of the "basic adaptation theory","necessity theory" and "compromise theory",this paper discusses the problems existing in various theories at the present stage.As far as the theory of "basic adaptation" is concerned,the misunderstanding in practice is that as long as the consequences of serious injury and death occur,it is deemed as excessive defense,while the theory of "necessity" pays too much attention to the subjective feelings of the defender,which is easy to infringe upon the legitimate rights and interests of the illegal infringer.The theory of compromise simply superimposes the former,but in fact it still shows the corresponding view of "basic adaptation".From the perspective of legal provisions,the theory of "basic adaptation" is undoubtedly more in line with the provisions of existing legal provisions.So the study of defense limit can be transformed to the level of how to correctly understand and accurately apply the theory of "basic adaptation".In order to solve the problems in the practice of justifiable defense at this stage.In the judicial practice of justifiable defense,the biggest problem is the result only theory.That is to say,as long as there is serious injury or death,even if the nature of defense is affirmed,it is often regarded as excessive defense rather than justifiable defense.Judging from the process,the corresponding "tool equivalence theory" appears,which holds that the defender can only use the same strength tools as the illegal infringer in the process of defense,otherwise it will deny the establishment of justifiable defense.Therefore,when judging the nature of the defender’s defense behavior,a comprehensive and systematic analysis is particularly important.On the one hand,we should not only confirm the "necessity" and "requirement" of defense.On the other hand,we should make a comprehensive investigation from the intensity of behavior,the urgency of time,the comparison of legal interests and the subjective and objective situation of defense,so as to accurately determine the nature of defense behavior,so as to safeguard the legitimate rights and interests of both parties.Therefore,the core of this paper lies in two points.One is that the judgment of defense limit should return to the level of "basic adaptation",which is more in line with public cognition and easier to be accepted by the public.Second,from the perspective of German dualism of justifiable defense,it explores the theoretical commonality between the theory of "basic adaptation" and the principle of legal confirmation.The principle of legal corroboration can be understood as that the defender realizes the maintenance of the legal order destroyed by the illegal infringer through the defensive act.In the case of over protecting the defender’s rights and interests at the expense of protecting the legitimate interests of the illegal infringer,in fact,the defender’s defensive act also destroys the corresponding legal order.And the existence of the theory of basic adaptation also realizes the maintenance of the legal order from the perspective of the adaptation of defense behavior and illegal infringement.The two theories can be perfectly applied to deal with the corresponding problems in China.This requires us to compare the defense behavior and illegal infringement behavior when judging the nature of defense behavior,and to think about the "necessity" and "requirement" of defense.In this process,because people in different identities have different subjective feelings,and objective evidence can relatively accurately show the whole picture of the facts,we should adhere to the objective way of judgment,especially in the issue of defense limit,we should consider from the objective level to avoid the interference of subjective factors in the determination of the nature of the case.This not only requires judicial staff to improve their professional ability,but also requires them to bear heavy social responsibility.For some "controversial" cases,we can deal with them by means of non prosecution,exemption from punishment and commutation,so as to achieve "accurate conviction and lenient sentencing".And through the combination of hot cases in recent years,we try to find a new breakthrough in the judgment of justifiable defense limit,which will benefit the judicial practice.