The Identification Of The Cause And Opportunity Of Justifiable Defense In The Context Of Fighting

In judicial practice,criminal cases caused by conflicts between the two parties are very common.In this case,the two sides are usually on defense that their behavior belongs to the justifiable defense system,but the judicial organs often confirm that the behavior of both parties belongs to "mutual assault".Justifiable defense system and mutual assault are externally reflected in attacking each other,so there is a great degree of overlap.In addition to the similarity in external manifestations,the concept of focusing on combating crime in China’s judicial practice also greatly affects the identification of defense and mutual assault.However,the identification of justifiable defense in judicial practice deviates from the requirements of public opinion,it is therefore crucial to establish a legitimate defence for mutual attacks.This paper holds that the establishment of justifiable defense cannot be completely ruled out in the case of mutual assault,and the two have some possibility of overlap and transformation.The article is divided into three parts.Firstly,it studies mutual fighting and justifiable defense,and defines their concepts and characteristics.Generally speaking,self-defense behavior and mutual fight are mutually exclusive,but self-defense behavior may also appear in mutual fight in some situations.This paper distinguishes the types of mutual fight,and divides the self-defense in the situation of mutual fight into one party’s upgraded fight and one party’s giving up fight.In the process of mutual assault,one party suddenly uses a lethal weapon with relatively strong lethality,and the intensity of illegal infringement has changed from slight to fatal;The other is when one party has given up fighting and turned to the other party for mercy or escape,but the other party continues to pursue and continue to infringe.That is,the intensity of aggression has changed,from mutual assault to unilateral assault,or the mutual assault has actually been terminated,and its nature has become unilateral unlawful infringement.At this time,the infringed may have carried out necessary self-defense.Secondly,the system of self-defense under the scenario of mutual assault is relatively special.At this time,there are preconditions to confirm the act of self-defense,which needs to meet the requirements of the causes of the act of self-defense,such as illegal invasion.At the same time,this act must be ongoing,that is has the conditions of opportunity.The second part studies the identification of the causes of justifiable defense.In determining whether there is illegal infringement,we should not consider the subjective attitude of the defender,but only make an objective evaluation of the illegal infringement.The third part studies the timing of justifiable defense.In terms of time conditions,the time points that have begun and have not ended are considered from the perspectives of legal interest protection and the complete end of infringement.Based on the research on the preconditions of defensive behavior under the scenario of mutual assault,and according to the analysis of the situation that the opposite party escalates the fight and the defense party gives up the fight,if the intensity of the infringement has also changed or the nature of the fight has become unilateral illegal infringement,the research on the identification of justifiable defense system can be carried out under the background of mutual assault to form a reasonable Operable judgment criteria to better grasp the difference between mutual assault and justifiable defense.