The Judicial Application Of Justifiable Defence

The system of self-defence is an important weapon for citizens to defend their legitimate rights and interests in the face of unlawful attacks.In recent years,the state has issued judicial interpretations and cases related to the system of self-defense,the intent is to change the idea of strict combat,encourage citizens to actively fight against crime,highlighting the value of "law cannot give way to lawlessness".However,the judicial application of self-defense has always had a conservative tendency,mainly reflected in the standard of unlawful infringement and the judgment of the limit of self-defense tendency only results theory,these two shackles greatly compressed the judicial practice of self-defense of the establishment of space,resulting in the self-defense system failed to play its due positive role.In this paper,we take the case of Yu Huan’s insulting mother as a perspective,try to clarify the specific scope of unlawful infringement and judgment standards based on existing theories,and reconstruct the rules for judging the limits of defense,in order to break the two shackles that restrict citizens’ right to defense,correct the judicial application of self-defense,and activate the system of self-defense.The standard of unlawful infringement is unclear as a result of the judiciary’s concept of "resting on one’s laurels",which conflicts with the attribute of self-defence to protect the freedom of citizens.In order to accurately identify the wrongful infringement,this article firstly,from the rights-based perspective,to sort out the specific content of the urgency of the wrongful infringement,mainly divided into three views: the urgency of time,the urgency of the infringement and the "lack of the possibility of seeking public relief".Among them,the views of the urgency of the infringement and the "lack of possibility of seeking public redress" are not in line with the principle of criminality,violate the principle of equal legal status of citizens,and are not able to balance the relationship between public redress and self-defence.This paper clarifies the urgency of the offence as the urgency of the time when the offence is in progress,and proposes that the "exclusion of the priority of public remedies" should be a precondition for the determination of the offence.Secondly,the scope of the wrongful infringement is defined as a crime that can be stopped after the public remedy has been excluded.Finally,returning to the precise determination of wrongful infringement in specific cases,the following conclusions are drawn from the discussion of the two special circumstances that arose in the Huan mother-shaming case: first,the presence of the police does not mean that the wrongful infringement has ended,and there is still the possibility of allowing citizens to exercise the right of defence;second,the act of mother-shaming is legally established as wrongful infringement and should be allowed to be defended against,and emotionally,the act of mother-shaming is a serious Secondly,the act of insulting the mother is a serious violation of ethics and morals,and should be considered a very serious wrongful act and given the maximum compassion and relief within the scope of legal discretion.The tendency to judge the limits of defence in a consequentialist manner is rooted in the traditional Chinese concept of life and death,practical and rational thinking and the doctrine of basic compatibility.In order to overcome the tendency of consequentialism,it is necessary to shift the focus of investigation of the judgment of the limit of defence to conduct and reconstruct the rules of judgment of the limit of defence.Firstly,the relationship between the limits of conduct and the limits of defence should be clarified,and a double test mechanism should be constructed to give priority to conduct.Secondly,the normative connotations of the relevant concepts should be clarified: "necessary limit" should meet the requirements of proportionality and minimum intensity of effective defence;"significantly exceeds" should meet both subjective and objective requirements;"causing significant The "causing significant damage" refers to the specific consequence of causing serious injury or death in an absolute sense.Finally,combining the double test mechanism and its normative connotation,this paper constructs a rule for judging the limit of defence with the priority of behaviour,and provides judicial practice with concrete steps and normative requirements for judging the limit of defence.According to this judgment rule,this paper argues that Yu Huan’s defensive behavior did not significantly exceed the necessary limit,and there is no need to judge the limit of its result,which does not constitute over-defense.