The Empirical Study On The Application Of Special Defense Restriction

Since its establishment,the special defense clause has been a hot topic in academic circles.However,the application of special provisions in judicial practice is still very cautious.In recent years,with the Supreme People’s Court,the Supreme People’s Procuratorate and the Ministry of Public Security issuing the Guiding Opinions on the Application of the System of Justifiable Defense in accordance with the Law and the introduction of guiding cases such as the Kunshan Anti-Murder Case,the Yu Huan Case and the Zhao Yu Case,the judicial application of the special defense clause has,to some extent,been on the right path,but this is not the case.75 effective samples were selected from the "China Judicial Documents Network",and the analysis of the application status of special defense showed that the overall application rate had not been broken through,and there was still a problem of limited application.First of all,in judicial practice,the identification of the nature of defense acts is relatively strict.Because of the enlargement of the identification standard of "mutual fighting acts",part of defense and counterattack acts are often identified as "fighting".Secondly,the identification of the time of unlawful infringement is relatively strict,and the pause or stop state of the infringement is taken as the basis for the judgment of the end time of the unlawful infringement,which actually shortens the scope of "ongoing".Thirdly,in judicial practice,it is controversial whether the understanding of "assault" and "other serious violent crimes" should adopt the criterion of objective result or the criterion of whether to use tools,which leads to the application of restrictions on special defense.Finally,there was a disagreement as to whether special defence was qualified and whether paragraph 3 was an exceptional provision or a care provision.These problems affect the identification of special defense in judicial practice,and also lead to the difficulty in the application of the Guiding Opinions.There are many problems in the identification of special defense.From a social point of view,when one or both parties are killed or injured along with the act of defense,the social pressure brought by the verdict of not guilty on the act of defense will be concentrated on the judiciary.From the legal point of view,the theoretical circle has been controversial on the study of special defense,and the provisions of criminal law are also relatively principled expression,which also leads to the judicial workers’ lack of initiative in the application of special defense.Based on the problems and reasons for the application of restrictions on special defense clauses,the author believes that the identification criteria of mutual fighting should be clearly defined first,and it is agreed that mutual fighting should not be recognized as defense behavior,but the sudden mutual fighting should be judged according to the specific situation.Secondly,the judgment of "illegal infringement" and "ongoing" should be made from the perspective of "the scene",and a relatively broad standard should be adopted to identify "ongoing illegal infringement".Thirdly,it is clear that the degree of aggression of "assault" is equal to that of "other serious violent crimes".Instead of judging "assault" by the result of damage or whether tools are used,the comprehensive standard is adopted.According to the judgment of comprehensive intensity,some violent assaults on defenders with a greater degree of aggression but without weapons can be identified to avoid "consequentialism".Finally,for the understanding of the limit of special defense,the rule of care is adopted,that is,special defense and justifiable defense are not mutually exclusive.Paragraph 3 is the rule of care,rather than breaking through the exception of paragraph 1.Both tell us whether the behavior is excessive from positive and negative perspectives.Generally speaking,with the reform of the judicial system and the continuous improvement of the construction of the rule of law,the problem of the application of special defense restrictions has indeed been improved,but the overall application is still not optimistic.To standardize the correct application of special defense,it needs the continuous efforts of the theoretical and practical circles.