The Decriminalization Of The Counterattacks By Abused Women From The Perspective Of Dichotomy Of Necessity

In recent years,cases of battered women fighting back afterward due to domestic violence issues have increasingly become the object of social concern.Currently,these cases are directly proceeded with the sentencing phase by judicial practice,which ignores the judgment on the possibility of the perpetrator’s reason for decriminalization.Based on the three-class crime constitution theory,the paper attempts to propose a decriminalization scheme that conforms to legislative norms and is judicially feasible after sorting out the emergency powers in China.In addition to the introduction and conclusion,the paper contains three main parts,which are divided as follows:The first part defines the concept of "counterattack of abused women after the domestic abuse" and analyzes the current status of its adjudication through empirical research.Since the term "counterattack of abused women after the domestic abuse" is not a legal term,and there are different terms for such behavior,such as "killing of husbands in the interval of domestic abuse","killing a husband by a battered woman","repression of violence with violence".Similarly,there are cases of "domestic tyrant cases" abroad.Therefore,in this part,we first define the "counterattack of abused women after the domestic abuse" and clarify its concept as "a woman who has suffered from domestic abuse continually deliberately kills or injures the perpetrator when he is asleep or eating and other unprepared states to prevent further domestic abuse or to get rid of it." Additionally,after sorting out cases of counterattack of abused women after the domestic abuse from 2000 to September 6,2021,those Judgment documents of cases of abused women who fought back during the interval of domestic violence,caused the death of the abuser and were adjudicate domestic abuse by the court are selected by using the empirical analysis method.Subsequently,the paper summarizes the basic situation,conviction,and sentencing of abused women’s counterattack cases in practice and reflects on the problems in applying the leniency path for such cases.In the second part,based on the class criminal theory,the paper analyzes and evaluates the reason for the decriminalization of the crime of counterattacks on abused women from the illegal class.Firstly,the paper explores the several paths of criminalizing traditional self-defense in the academic field and argues why the traditional self-defense theory cannot be used as a cause of criminalization in the case of battered women’s subsequent counterattack.Secondly,the battered woman syndrome theory in the common law system is discussed,and the reasons why it is difficult to be applied as a defense of self-defense in the stage of conviction of battered woman’s ex post facto counterattack are analyzed with respect to our substantive and procedural laws.Finally,it distinguishes the different types of necessity and demonstrates why it cannot realize justifiable causes of counterattacks on abused women after the domestic abuse according to the legal basis of necessity.In the third part,the paper analyzes and demonstrates the justifiable causes of the abused women’s counterattack from the responsible class.Firstly,it is denied that the anticipated possibility should be employed in the case of counterattacks of abused women after the domestic abuse as a reason for supra-law justifiable causes or justifiable causes of general liability.Secondly,on the premise that the dichotomy of the legal nature of emergency risk avoidance is affirmed,the theoretical basis for the prevention of emergency risk avoidance is analyzed as the theory of double-mitigate guilt and the necessity of prevention and demonstrates the application limitations of the dichotomy under the necessity impeding liabilities.Finally,combined with the foreign research on the specific application of necessity impeding liabilities of counterattacks of abused women,and on the premise of clarifying the applicable conditions for the necessity impeding liabilities,the paper analyzes the specific considerations of the case of counterattacks by abused women after domestic abuse.