Justification Of Defensive Behavior:System,Basis And Practice

The act of defense is the act of counterattack carried out by the perpetrator in order to protect himself,others and even the public interest,and the implementation of the act of defense is not only a natural right,but also a legal right.For a long time,the judicial alienation of China’s self-defense has deviated from the original intention of the 97 Criminal Law,although the academic research on the act of self-defense has continued to deepen,but the phenomenon of judicial alienation has not been timely corrected.In recent years,China’s self-defense system from "dormant" to "activation" of the transformation,objectively,the formation of public opinion to break the inertia of judicial practice has played an important role,fundamentally,the gradual establishment of the people’s main position is the transformation of judicial practice.The core of the transformation of judicial practice is the gradual establishment of the people’s main body.Based on the gradual establishment of the status of people’s subjects,the subjective value of the justification of the act of defense and the value of order show a dynamic consistency.The discussion of the justification of the act of defense in this paper revolves around three paths.First,the institutional expression of the justification of the act of defense.The development of the legitimate defense system is the process of social and legal regulation of human defensive instincts,and the process of the extinction of private power and public rights.The system of legitimate defense can hardly coincide with the legitimacy of defensive behavior,but it can express the different value attributes of the legitimacy of defensive behavior to a certain extent.In early human societies,the implementation of private relief by individuals was not recognized by the ruling class,which emphasized the relief role of public power in order to maintain the stability of order.In modern times,criminal laws around the world have provided for defense,and the connotation of "the law shall not yield to wrongdoing" has been generally recognized,but in terms of defense of others,defense of the public interest,and the principle of retreat,there are different propositions in each country.The purpose of the discussion on the development of the defense system is to study the relationship between the legitimacy of the act of defense as a "law" and the system of self-defense as a "law",which reflects the degree of realization of the value of the subject of law.The second is the theoretical basis for the legitimacy of the act of defense.The legitimacy of the act of defense is the essential characteristics of the act of defense,China’s legal researchers in the absorption and learning from foreign legal theory.The essential characteristics of the act of defense formed a "monism" "interest measurement theory" "dualism" and other different understanding.The dualist interpretation path is the general theory of the German academy and judicial precedent today,and is also supported by some legal researchers in China,but the specific interpretation of dualism varies within the proponents of dualism.In general,the essential features of the act of defense can only be fully interpreted from both individual and social dimensions.Third,the practical orientation of the justification of defensive behavior.The theoretical basis for the study of the justification of defensive behavior in China is mainly based on the absorption and borrowing of foreign theories.Unlike the openness and depth of theoretical research,China’s judicial practice of self-defense in a certain period of time on the determination of the legitimacy of the act of self-defense presents a judicial alienation of the situation,the requirements of the defender is too high,so that the system of self-defense was once regarded as a "dormant clause".Since then,on the basis of the gradual establishment of the people’s subject status,public opinion and the judiciary have formed a positive interaction,and the judicial discretion of the justification of the act of defense under the supervision of public opinion has gradually approached theoretical research and legislative purposes.