The Legittimate Path Of“Violence With Violence”in Domestic Is Explored

The act of “violence against violence” in domestic violence is mostly manifested by the wife who can’t stand the long-term domestic violence and kills her husband in his sleep or drunken state.This behavior lacks the discussion space of exemption of guilt according to the principle of the elimination of misfeasance,so it is mostly evaluated as kill crime or intentional injury in judicial practice.However,the sharp contrast between the defendant’s miserable and helpless situation and the abuser’s brutal and cold behavior has affected the general public’s perception and the judge’s judgment.Therefore,after the case enters the trial procedure,there often exist conflicts between the trial result and the public opinion and the “co-exclusive judgment” phenomenon.The Opinions on Handling Domestic Violence Crimes According to Law jointly issued by the Supreme People’s Court,the Supreme People’s Procuratorate,the Ministry of Public Security and the Ministry of Justice pointed out that the defense factors and fault responsibility in the case should be fully considered,but there is no specific and clear explanation on the determination of the defense factors,which leads to the low frequency of application of the judicial interpretation in practice.Faced with the dilemma in judicial practice,some scholars believe that we should admit the particularity of the case and find the applicable space of the legitimate path for the “violence against violence” behavior of battered women from the illegal class and the responsible class.After considering the particularity of domestic violence cases,scholars who advocate the exemption of guilt from the illegal class try to expand the time conditions applicable to justifiable defense and introduce the German “defensive necessity theory” to provide protection for battered women;Scholars who advocate exemption of guilt from the responsible class focus on the theory of “anticipated possibility” and the theory of “battered woman syndrome”,in order to exclude criminal punishment of battered women when they are affirmed not to have the anticipated possibility or the ability of responsibility.Based on the existing legal and theoretical framework in China,the paper discusses the space of the exemption of guilt in certain cases from the perspective of legal interpretation.First of all,the identification of the “ongoing illegal infringement” in self-defense cannot be based on the “starting” theory.In the case where the violence has not yet begun,but the situation is so urgent that the battered woman will lose the opportunity to defend herself once stepping into the implementation stage,or where there is evidence that there is the possibility of another major damage despite the end of a certain behavior of violence,it should be deemed to meet the requirements of defense time.As for the judgment of defense limit,it is necessary to analyze “obviously exceeding the limits of necessity” and “causing serious damage” at the same time,and consider whether the behavior “obviously exceeds the the limits of necessity” in combination with multiple factors such as the severity of domestic violence,the cruelty of means and the environment of the defender;It can not judge whether the behavioral outcomes belongs to“causing serious damage” according to the traditional principle of interest measurement.It should be judged in combination with the characteristics of domestic violence that as long as the defense is necessary and there is no significant interest imbalance,it meets the requirements of defense limit.Secondly,while affirming the theory of anticipated possibility as a super-normative cause of preventive responsibility,we should be cautious in applying it.After determining that the battered woman has exhausted other possible remedies,we should judge comprehensively whether the battered woman should be criminally punished in combination with the frequency,duration and degree of violence.