An Empirical Study On The Determination Of Legitimate Defense From The Perspective Of Procuratorate

The determination of legitimate defense is related to the realization of the purpose and effect of legitimate defense,and it is indeed necessary to construct a rule for the determination of legitimate defense based on and effectively influencing the judiciary within the framework of China’s Criminal Law and the new judicial interpretation.The controversy focused on how to define the unlawful infringement that is the cause of defense,how to delineate the start and end time of defense,how to characterize the subjective aspects of the perpetrator,and how to determine the limits of defense.However,the emergence in practice of individual cases that have caused widespread social controversy,and the emergence of common problems in cases involving legitimate defense,such as the consequential theory and the theory of armed reciprocity,all show that great efforts are still needed to be made to comprehensively discover and resolve the problem of determining legitimate defense.Most studies seek solutions to problems through theoretical discussion and case analysis,but it is still unclear whether the solutions proposed on the basis of a comprehensive understanding of the practical situation can be solved;A very small number of studies have tried to reflect the whole picture of judicial practice through empirical studies of large sample data,but there is no perspective on the procuratorial organs as an important part of judicial practice.Based on this,this paper sorts out the core controversy of the theory of legitimate defense,conducts empirical research from the perspective of procuratorial organs that has not been seen before,comprehensively understands the practice of justified defense determination,compares the application of theory and judicial interpretation in practice,finds that theory and judicial interpretation cannot comprehensively solve the main problems in practice,and on this basis,puts forward the concept of improving the determination rules,in order to improve the operability and stability of the theory.In addition to the preface and conclusion,the research content of this paper includes four parts:The first chapter introduces the relevant discussion on the core disputes in the four aspects of legitimate defense cause,time,subjectivity,and limitation,and sorts out the focus of the academic controversy and issues related to judicial interpretation.The core controversy of legitimate defense in terms of the cause of defense lies in how to determine the scope of infringement and how to divide the cause of defense;There are many opinions on the division of time in terms of defense time;There is a dispute over the necessity of defense consciousness,the dispute over the crime of excessive defense,and the dispute over whether defense consciousness and criminal intent are mutually exclusive;In terms of the limit of defense,in addition to the huge controversy over the theory of judging the limit of defense,there is also a dispute between the doctrine of unity and dichotomy.The second chapter,an empirical study of the identification part of the sample,on the basis of combining the theoretical focus,focuses on the analysis of 29 factors in the sample,and discovers the characteristics and tendencies of judicial practice identification.The study found that the procuratorial organs lacked explanations for the determination of the cause of defense,and whether the two parties had engaged in mutual assault and whether the victim was armed had an impact on the determination result,but the legal interests and degree of the unlawful infringement itself had no impact on the determination result;There is a certain degree of confusion and slight mechanical determination problems in the procuratorial organs’ determination of defense time;The procuratorial organ’s determination of the subjective aspect of defense reflects the necessity of a sense of defense,and it is generally considered that excessive defense is an intentional crime;For the determination of defense limits,the balance of forces between the two sides,the choice and source of defense tools have an impact on the determination of procuratorial organs,and the procuratorial organs put forward higher requirements for suspects in terms of defense sites and defense results,and in general,the determination of defense limits lacks logic and reasoning;The procuratorial organs have the problem of artificially setting the obligation to surrender,and the time of occurrence of the case and whether the suspect has called the police or sent to the hospital afterwards have an impact on the determination result.Finally,it is concluded that the problems existing in the procuratorial organs include: the lack of rules for the determination of infringement of legal benefits,the relatively chaotic time requirements for defense,which makes it easy to determine that the suspect’s defense is inappropriate,the form of excessive defense is generally determined to be intentional,the selfcontained system of defense limit judgment makes it difficult to apply the judicial interpretation,and the requirement for other elements leads to the compression of the scope of the establishment of legitimate defense.The third chapter,based on the focus of theoretical controversy and empirical research findings,analyzes the fit relationship between theory and practice,and examines the application of theory in practice.The study finds that the theory proposed by the academic community to judge the scope of unlawful infringement cannot fit into practice,and practice needs a framework for judgment,while classification theory can meet the requirements of practice;The theory of time judgment proposed by the academic community is generally in line with practice,and the concept of excessive time proposed cannot be matched,and the degree of fit of views requiring urgency is low;The theory that the crime of defense proposed by the academic community should generally be a crime of negligence is less compatible in practice,and the vast majority of cases of excessive defense in practice are identified as intentional crimes;The theory of determining the limit of defense proposed by the academic circles is relatively consistent with practice,and the determination of the limit of defense in procuratorial and judicial practice is self-contained.The fourth chapter proposes,on the basis of the previous study,the idea of improving the rules for determining legitimate defense.Although the problems existing in procuratorial judicial practice are not serious as in judicial trial practice,there are also problems such as the inability to start from the determination of unlawful infringement,the confusion in the determination of defense time,the general determination of excessive defense as an intentional crime,the lack of logic in determining the limits of defense,and the influence of other factors,and most of the theories proposed by the academic circles are not highly compatible with judicial practice,and the judicial interpretation still cannot completely solve the problem.Therefore,it is necessary to improve the rules for determining legitimate defense.After improvement,the determination of unlawful infringement shall be divided into two aspects: nature and degree of judgment,reasonably expand the scope of unlawful infringement compression,and provide a relatively fixed framework.The determination of defense time shall be reasonably relaxed,avoiding the problem of easily determining that defense is inappropriate.The subjective aspect of legitimate defense should require a sense of defense,the form of excessive defense may be intentional or negligent,the awareness of defense and criminal intent are not mutually exclusive,and another "intentional" should not be denied on the grounds of affirming one "intent".The judgment of the limit of defense shall construct a determination rule with the criminal law and judicial interpretation as the framework,shall take the position of necessity as the basis,regard the defensive act and the result as one,and judge the causal relationship between "major damage","obviously exceeding the necessary limit",excessive defense and major damage step by step,and filter the excessive defense.