Determination Of Justifiable Defense In Mutual Battering

In the judicial practice,the mutual assault is easily recognized as a wrongful assault and the existence of legitimate defense is denied,which has formed a judicial misunderstanding of mutual assault without defense for a long time and seriously restricted the improvement and development of the legitimate defense system.The lawfulness of self-defense in the act of mutual brawl is demonstrated by the comparison of the crime of mobbing with the typical cases.The reasons for the difficulty in determining the legitimate defense in mutual assault are: the requirement of intent to defend is too strict,excluding other wills derived from the act of defense,such as revenge and venting hatred;the existence of the element of proportionality as the primary criterion for the limit of defense,the obligation of first avoidance attached to the defender in defense,and the denial of the establishment of legitimate defense by the consequences of death and injury.In the light of the problems in the application of self-defense in mutual assault,we can improve the identification of self-defense in mutual assault from the perspective of the principle of measurement of legal interests and the priority of the defender and the scale of private remedy,so that the system of self-defense in mutual assault can regain new vitality.