Reflection And Reconstruction On The Criterion Of Urgency Of Unjustifiable Defense Against Justifiable Defense

The basic problems of the urgency of illegal infringement include three aspects: illegality,urgency and aggressiveness.The unclear definition of these three aspects will lead to the fuzzy judgment standard of the urgency of illegal infringement.Therefore,it is necessary to analyze and sort out the basic problems of the urgency of illegal infringement.We should clarify the various understandings of the basic concept of the urgency of illegal infringement in theory,and determine the basic concept consistent with practice.Therefore,we should reconstruct the judgment standard of illegality from the three aspects of urgency and urgency Correctness in direction.The judgment standard should also clarify the practical significance and theoretical value of reconstructing the judgment standard of the urgency of illegal infringement,so as to provide strong support for the research of reconstructing the judgment standard of the urgency of illegal infringement.There are three main theories about the judgment standard of the urgency of illegal infringement,namely,the theory of objective subjectivity,the theory of distinction,and the theory of judgment after the event.Because the objective subjective theory is actually the objective theory,which is not reflected in the subjective aspect.At the same time,it is rarely used in practice,so it has no value to guide practice.Although the differentiation theory uses the dichotomy method to divide the judgment of the urgency of illegal infringement into two levels for discussion,it is not suitable for practice because it is not mature in theory and needs to be further improved Although it has been basically perfect in theory and practice,it is the mainstream view in theory and practice,but it has its own inevitable disadvantages,such as the single element of judgment,too harsh on the defender,and limiting the exercise of the right of defense.In view of the shortcomings of the three theories in theory and practice,it is necessary to re-establish the judgment standard of the urgency of illegal infringement,and guide judicial practice more objectively and fairly.The construction of the judgment standard of the urgency of illegal infringement mainly includes three aspects,which are as follows: firstly,we should adhere to the following three principles,namely,the priority principle of defending people’s interests,the principle of timely defense,and the principle of expected possibility;secondly,the specific path of the judgment of the urgency of illegal infringement should apply the new division theory,that is,we should judge the urgency of illegal infringement from the perspective of the defender The standard of ordinary person is the standard,and the standard of judging the urgency of illegal infringement is the reasonable belief of the perpetrator.The new division theory is a new standard formed by absorbing the reasonable elements of the division theory and drawing lessons from the judgment standards of the United States and Germany,which is more in line with the objective reality.Finally,in order to make the reconstructed standard more widely used in practice,more detailed standards should be applied to the three special cases,that is,the factors of cumulative increase should be considered for the continuous infringement cases,and the property recovery cases We should consider whether the lost property can be recovered on the spot.In domestic violence cases,we should consider the risk of domestic violence faced by the victims and relax the defense time appropriately.Only in this way can the unity of emotion and law be realized.