Study On The Limit Of Justifiable Defense In The Cross-visual Perspective Of Criminal Law And Civil Law

The limit of justifiable defense is the key to distinguish justifiable defense from excessive defense.What’s more its standard and cognizance have always been common and controversial problems in criminal law and civil law.From the perspective of the history of legislation,before the amendment of Criminal Law in 1997,the norms of the limits of justifiable defense in criminal law were completely same.After the revision,there are some differences between“obviously exceeding the necessary limit and causing significant damage” and “exceeding the necessary limit and causing undue damage”.From the perspective of judicial practice,first of all,there are some differences on the understanding of the limit of defense between the criminal cases and civil cases.In criminal judicial practice,it is a common thought that the limit of justifiable defense includes the limit of the defensive behavior,which is “obviously exceeding the necessary limit”,and the limit of result that is “causing great damage”.However,in civil judicial practices,most of the mainstream identification standpoint is that the limit of defense is “the behavior of justifiable exceeding the necessary limit”.Therefore,there are internal contradictions on the judgment of the limit of justifiable defense in criminal and civil judicial practice.In fact,and the conditions for the establishment of justifiable defense in civil judicial practice are more stringent than in criminal judicial practice.In academic circles,there are disputes over whether the limits of justifiable defense of criminal law and civil law should be consistent.The monism of undue defense of criminal people insists on the consistency of undue defense of criminal people,while the dualism holds that there are differences between the two.With barely no supporting from judicial practice,the dualism of excessive defense of criminal civilians violates the principle of unity of legal order and does not conform to the unitive judgment of illegality of defense behavior,which hinders the exercise of justifiable defense.By contrast,the monism of excessive defense of criminal civilians sticks to the principle of unity of legal order and conforms to the essential attribute of justifiable defense,which is conducive to the function of justifiable defense,and accords with the status quo of judicial practice.Justifiable defense is a legal behavior that both criminal law and civil law need to actively encourage and protect.Only when the defense behavior exceeds the limit of justifiable defense,its legitimacy attribute can be transformed into illegality.Before it’s exceeding,the justifiable defense behavior has legitimacy rather than not illegality.According to the site,the monism of excessive,defense,the action limit of justifiable defense should be distinguished from the behavioral limits.“The limit of justifiable defense” of civil law is “obviously exceeding the action limit of justifiable defense” of criminal law,“The undue harm” of civil law is “causing significant harm” in criminal law.Therefore,the limits of justifiable defense in criminal law and civil law include behavioral limit and result limit.The behavioral limit od defense is obviously exceeding the action limit determined by illegal attack.And the limit of the result of defense is “significant harm” caused by the defensive behavior that obviously exceeds the limit of action limit.