| As a non legal term,the understanding and application of "assault" are controversial in both theoretical and judicial circles.The life of law lies in interpretation,but interpretation should have certain limits and rationality.Excessive limited interpretation and expanded interpretation are not conducive to the implementation of law.Legal interpretation has the characteristics of the times,and people’s understanding and demand of law are not the same in different periods.With the development of China’s rule of law civilization,people’s demand for fairness and justice is more and more intense.The judicial concept of "law can’t give way to lawlessness" is deeply rooted in the hearts of the people.The theoretical research of justifiable defense is also constantly enriched and developed.As a controversial concept in the third paragraph of Article 20 of the criminal law,the concept of "assault" has attracted people’s attention,and the relevant theoretical research has also risen,and scholars have paid more and more attention to it They put forward their own views from different angles.The purpose of theoretical disputes is to solve the defense problems encountered in the reality of justice.From the former self-defense system is less applicable,and the special defense system is more likely to be shelved,to the present self-defense cases cause social concern,the understanding and application of "murder" need further theoretical research.Therefore,on the basis of drawing lessons from various theories and viewpoints,combined with judicial practice,this paper will explore the concept and controversial issues of homicide,and then clarify the identification standards of homicide,in order to provide solutions to the defense problems encountered in judicial practice.Although at this stage,there have been relevant guidance cases to elaborate the characteristics and identification path of "homicide",but after all,the guidance cases are only for individual cases.Through in-depth theoretical research,it is the main direction of the current research on homicide to find the essential characteristics of homicide,clarify the identification standards of homicide,and make it universal.Through the analysis of the guiding cases,this paper explores the direction of judicial guidance at the present stage,and combined with 89 judicial judgments on defense cases in the past three years,studies the identification standards of homicide in judicial practice and the problems existing in the application process.It is found that although the guiding cases support the application of the concept of homicide in special defense cases,and encourage defenders to have the courage to protect their legitimate rights and interests,there are still some problems In the reality of judicial practice,the application of homicide is still very few,only the results of the common way of thinking in judicial decisions,the judiciary is more inclined to pay attention to the results of injury or death,ignoring the judgment of the nature of illegal infringement itself,and the lack of a stable standard of judgment,for continuous infringement and escalation of violence type of special defense cases,through the identification It is rare for the judicial practice that the behavior of the illegal infringer constitutes a crime,which makes the defender commit a crime.There are two reasons why we should focus on the research of the identification standard of homicide: on the one hand,in special defense cases,it is the illegal infringer rather than the victim who suffers casualties.However,people are more likely to have sympathy for the victims intuitively,thus ignoring the judgment of the nature of the illegal infringement,and the injured illegal infringer becomes the same person On the other hand,the meaning of the crime itself is difficult to determine,the vague concept of the crime leads to the nature of the illegal infringement is difficult to judge,in the face of the results of casualties,it is lack of theoretical support to invoke the "crime" to achieve the purpose of making the defender guilty.Therefore,we can draw the conclusion that although guiding cases and theoretical guidance can lead the judicial direction,it lacks strong operability.Only by making clear the identification standard of the perpetrator,can we really change the tendency of the result only theory in judicial practice.Practice is the only standard to test the truth.Only by investigating the understanding and application of the "perpetrator" in specific cases can we make the standard more clear and clear. |
