On The Limits Of Justifiable Defense

Justifiable defense is an important legal system that can be traced back to the provisions of the Criminal Law in 1979.The purpose of the establishment of this system is to allow citizens to exercise their defense rights to protect the legitimate interests of the country,society and citizens themselves,but in fact the implementation of this system is not satisfactory.Subsequently,the 1997 "Criminal Law" revised and improved this clause.In the original article,"exceed" was replaced by "obviously exceeded","undue damage" was replaced by "significant damage",and the third paragraph of special defense was added.From the revision of the system,we can see that the state supports and encourages citizens to exercise the right of defense.However,the results of judicial practice are not so optimistic,it is difficult to determine the conditions of excessive defense,and the determination of justifiable defense is more stringent.Regarding the trial and judgment of justifiable defense cases,the judiciary is more inclined to deny that defensive behavior meets the requirements of justifiable defense,considering the defensive behavior as excessive defense,and even directly recognizing the case as the crime of intentional injury or intentional homicide.In judicial practice,the conditions of legitimate defense are relatively vague,the standards of defense limits are not clear,and the prevalence of "consequence-only" trial logic has caused judicial alienation in the justifiable defense system,which has led to the continuous reduction of citizens’ defense rights.In recent years,from the "Liao Cheng Yuhuan’s case" to the "Kun Shan anti-kill case" and then to the "Zhao Yu’s brave case for justice",they have all reflected the dilemma faced by the issue of defense limits in judicial practice.The judicial dilemma faced by the limit of justifiable defense is not only a question of the application of law,but also related to the vital interests of the public and judicial authority.Therefore,studying the problems encountered in judicial practice of the limits of justifiable defense and seeking solutions are beneficial to the justifiable defense system itself on the one hand,and on the other hand to maintain the credibility and authority of justice,to enhance the public’s sense of identity,and more importantly,It is closely related to building our country into a powerful country under the rule of law.The definition of defense limits has the following problems in my country’s judicial practice: 1.The “consequentialism” prevails,and the judgment logic of“result-behavior” is adhered to during the factual trial of the case,and the defensive behavior is reversed by the post-event result;2.The identification standards of the limit of defense are vague and the identification of defensive behaviors is too strict.Third,the pressure of public opinion is too high,which hinders the pressure of the intruder and his family members to continuously complain about petitions,which makes judicial personnel pursue the balance of the interests of both parties during the trial of the case.These problems seriously violate the purpose and original intention of the justifiable defense system,which makes the clause of justifiable defense fall into "deep sleep".The author compares the legal provisions of the justifiable defense systems of countries and regions with different legal systems outside the territory,and conducts a comparative analysis of my country’s theories on defense limits.In response to the above-mentioned defense limits,the author puts forward the following suggestions:First,establish a "behavior-result" trial logic and adhere to the dual conditions of behavior limit and result limit.Second,clarify the standard of defense limit,analyze the intensity,nature,tools used,the tools used by the defender,the environment,and the psychology of the illegal infringement,compare the strengths of the defenders from the perspective of the defender,and insist on the unity of subjective and objective judgments in the facts of the case,In order to make accurate identification of the defense limit.Third,the judicial technology is perfect.Compared with the justifiable defense clauses outside the territory,the judiciary has issued corresponding judicial interpretations to refine the types of defenses and make the defense clauses more operable.At the same time,giving full play to the role of guiding cases,concretizing abstract legal provisions,and interpreting the law by case,has important reference value for the judicial organs to apply the standards when trying similar cases.Fourth,to play the role of social public opinion,social public opinion is a double-edged sword should be strengthened the supervision and management of the news media,objectively reports the facts of the case,and plays an important role in the information dissemination in order to unify legal and social effects.