| In the study of the theory of the justifiable defense issues,there is few scholars focus on the time requirements of the justifiable defense,and in our country’s judicial practice,applies the justifiable defense system’s enthusiasm is not high,although some hot cases happened in recent years,the apply of justifiable defense,but is on the cognizance standard of specific problems,especially in the area of defense the cognizance of time into a relatively awkward position.Although the time requirement of justifiable defense is not the basis of whether the wrongdoer needs to bear criminal responsibility,but if there is no "check" and "participation" of the time requirement of justifiable defense,the system of justifiable defense will be difficult to achieve its original purpose.Therefore,it is indisputable that whether the requirements of justifiable defense time can be accurately identified is related to whether the defender’s behavior can be included in the scope of justifiable defense for evaluation.However,according to the present situation of the present theory and judicial practice in our country,due to the interpretation of criminal law theory of justifiable defense time is not consistent with the standards,which creates a judge in the judicial practice there is no clear follow basis,result in advance,the afterwards defense,defense is relatively fuzzy the limits of justifiable defence,etc,this also is to have the same properties in the judicial practice in our country or similar circumstances of the case,but in the end of the judgement have evident in one of the reasons for the differences,and it makes it difficult for judges to make reasonable decisions on some "critical" issues with defects in time requirements.Based on this,it is of great theoretical and practical significance to reconsider the identification of the time requirements of justifiable defense.To do for the elements of justifiable defense time accurately,of justifiable defense time requirement of tracing in the first place,from the time the elements in the process of the generation and evolution of concerns the status of justifiable defense time elements in the system of justifiable defense,only on the basis of clear its position,can be accurately defined illegal violation and the relationship between the elements of justifiable defense time.Therefore,through the process of generating time requirements,and through the two big law countries about the comparison of the legislation of justifiable defense time requirements,and through the analysis of violation for justifiable defense time elements that play a role,to define the elements of justifiable defense time status,to clarify its not justifiable defense set up independent constitutive requirements,but under a concept,the principle of necessity is a kind of objective judgment whether there is the necessity of defense tool,it is because of the existence of such a tool,burden of defense of violation to the risk of miscarriage in defence and reasonable allocation between unlawful infringer.After clarifying the most basic problems,this paper analyzes the realistic difficulties in the identification of justifiable defense time elements in the current judicial practice of our country,and finds out the deep reasons for the difficulties and the root causes of the problems,so as to provide reasonable ideas for the reconstruction of the identification of justifiable defense time elements.Finally,the formation of any idea has its most basic thinking path,so does the reconstruction of time elements.Combined with the crux of the difficulties in the determination of justifiable defense time,the paper summarizes the basis that the reconstruction of the elements of justifiable defense time should follow,and finally puts forward that the determination of the beginning time of justifiable defense should adhere to "foresee the present danger of infringement".And the determination of the end time of justifiable defense should follow the proposition of "the end of the dangerous state of the infringement of legal interests". |
