On The Localized Application Of Defensive Emergency Hedging

In China’s judicial practice,battered women are guilty of killing their husbands,and then the court according to the circumstances of discretionary sentencing to give a certain leniency.However,compared with the ordinary intentional homicide,the causes of such cases are special,the victims are greatly liable for the occurrence of the consequences,and the special preventive necessity of the perpetrators is much lower than that of the common criminals,hence the doer should be provided with the value of incriminating.First of all,no matter it is self-defense or aggressive necessity,it is impossible to evaluate the crime of this kind of case.Secondly,from the point of view of the emergency right system,in addition to Self-defense,there is also the defensive emergency avoidance which can be directly directed against the source of danger.The defensive necessity system originated from the German Criminal Law,but Article 21 of our criminal law can completely include this system.From the angle of view of battered women killing husbands,this paper aims at inducing the applicable elements of defensive emergency avoidance,providing an effective way for battered women killing husbands,and at the same time,perfecting our country’s emergency right system.This paper holds that the system of defensive emergency avoidance is a kind of emergency right between justifiable defense and offensive emergency avoidance,and its limitation is looser than that of offensive emergency avoidance,but it is strict to justifiable defense.In the case of battered women killing their husbands,it is impossible to be sure that the act of avoiding danger to life is a justifiable act,but the basis of culpability can be found at the level of responsibility.The first part is the introduction of the article,from the related cases in judicial practice,we can know that China’s long-term victims of the fight against homicide are guilty,and then combined with the statutory/discretionary circumstances to reduce the punishment.Through the analysis of similar cases,we can know that the sentencing situation of such cases is different at present,and there is a crime voice in the academic circle.In the second part,the author analyzes the reasons for the crime against battered women from the angle of criminal policy and psychology.From the angle of criminal policy,the victim’s personal danger is low and the necessity of special prevention is small,people who have been abused for a long time have a different mental state,which provides some explanation for why they take extreme measures.Then,this chapter analyzes the different criminal routes in the academic circle,and then chooses the defensive emergency avoidance system as the criminal routes of such cases.The third part is the theoretical core of this paper,focusing on the defensive emergency avoidance system itself,through the analysis of the philosophical basis and nature of the defensive emergency avoidance,to lay the foundation for the paper.The fourth part discusses the specific application of defensive necessity.When the interest harmed by the actor is less than or equal to the interest protected,the illegality will be prevented,and when the risk-avoiding behavior of the actor obviously exceeds the necessary limit,the crime will not necessarily be established at this time,it is also necessary to consider whether there is a reason to prevent responsibility at the responsible level.In addition,when the degree of danger is not so dangerous as to endanger the actor’s important physical interests or life,the actor may set up a hypothetical defensive urgent avoidance of danger,at this time in sentencing to its leniency.