Study On American Justifiable Defense System

Justifiable defense is an indispensable defense in the modern criminal law system,and it is also the oldest defense system in the criminal law.The system of justifiable defense is the result of the interaction of human nature and social nature in the social form.The natural attribute of justifiable defense is the self-protection made by the actor when he is facing the ongoing infringement,this kind of self-protection is closer to the natural reaction of human instinct.The social attribute refers to the justifiable judgment of the defensive behavior in the social form.Especially after the emergence of the state,the sanction of infringing acts can only be justified when the public power cannot arrive in time.At this time,the judgment of the legitimacy of defensive behavior will inevitably be affected by the state and social factors.It's also the main reason for the similarities and differences in the form and nature of justifiable defense among countries.The justifiable defense of the United States has the distinctive character of protect defender's right,which is closely related to the national governance model,the history of criminal law,the theory of criminal law,the criminal law system and the judicial operation model of the United States.This paper selects the American justifiable defense system for research,hoping to sort out the history of the American justifiable defense system development,theoretical basis,legislative style,judicial operation of the detailed situation.The American justifiable defense system has experienced the path of reform according to the actual situation of the country after the English common law.Judging from the Model Penal Code and the legislation of various states,the system of justifiable defense retains the tradition of English common law and the mode of legislation,that is,it classifies the defense according to different defense objects.The United States justifiable defense is obviously inclined to protect defender's right in terms of value choice and constituent elements.On the one hand,in terms of legislation,the Model Criminal Code and most states adopt the judgment model based on the subjective determination of the defender as the standard,and most states adopt the no-concession rule on the issue of using lethal force for defense.The design of these elements can basically achieve the goal consistent with the legislative intention after the output of judicial procedures.On the other hand,from the judicial point of view,the functions of American courts in trying defense cases can also accurately reflect their legislative purposes,that is,the accurate positioning of judicial functions is another key to the effective play of American justifiable defense.Research the justifiable defense system help stand in another perspective to solve the current problems in defence provide some train of thought,from the legislative purpose of justifiable defense,legislation technology,system design,judicial operation such as the comparison of different point of view,more effectively helps to find the root cause and value of our country's justifiable defence legitimation.In addition to the introduction and conclusion,this paper tries to expound the justifiable defense system of the United States through five parts.From the history and development of the system,theory and structure,legislation and judicial operation and other aspects of the United States self-defense rules and intrinsic value pursuit.The first chapter mainly traces the origin and reform of American justifiable defense system from the perspective of legal history.Based on historical factors,the British colonization of the American continent directly led to the United States to inherit the common law.Therefore,American justifiable defense carries the common law color from the very beginning,and the subsequent development and reform of this system is mainly influenced by American case law and the codification movement in the 20 th century.The origin and development of the American self-defense system can be divided into three stages: the first stage is the period of direct application to the English common law before the 18 th century,which mainly directly applies the provisions of the English common law on defense system.The second stage is the period from the end of 18 th century to the middle of 19 th century when the development of American case law changed the common law defense rules,which is mainly reflected in the transformation from objectivism to subjectivism in the identification standard of defense.The third stage is the codification period of the20 th century,during which there appeared the criminal law legislation activities of the states based on the Model Penal Code.The United States federal and state have formed a system of enactment law,and the self-defense system tends to perfect.The second chapter mainly discusses the theoretical basis of American justifiable defense.This chapter discusses and analyzes the American justifiable defense theory from four aspects.First of all,it analyzes the value pursuit of American justifiable defense.Starting from the basic principles of American criminal law,this paper analyzes that the American criminal law mainly takes utilitarianism,retributionism and pragmatism as the theory,and on this basis forms the value pursuit of justifiable defense to seek a balance between freedom and order.Secondly,explore the basic theory of American criminal defense,that is,the relationship between the criminal theory of criminal law and the excuse of defense,and the nature of justifiable defense in the excuse of defense is positively affirmed and pursued by the law.Thirdly,it analyzes the main theories on the basis of the United States' justifiable defense,that is that is,the theory of human autonomy in defence,social legal order and the theory of lesser evil.On this basis,it analyzes the influence of the theory of justifiable defense causes and exempt defense causes on the practical application.Finally,from the micro perspective,the paper analyzes the defense cause,defense time,defense intention and defense limit of the United States in justifiable defense.Through the analysis from the above perspective,it aims to reveal the value pursuit of protect defender's right in the United States' justifiable defense system.The third chapter analyzes the main types of justifiable defense in the United States from the legislative level.Based on the particularity of the national governance structure of the United States,the federal and 50 states have their own criminal enactment laws,and the contents of each state are different,but two-thirds of criminal codes are modeled on the Model Penal Code,developed by the American Law Institute.Therefore,this chapter uses the text analysis method to divide the types of justifiable defense into self-defense,defense of others,property defense and dwell defense by taking the Model Penal Code and the enacted laws of 50 states as the research objects.At the same time,according to the provisions of the criminal law,this paper analyzes in detail the constitutive elements of the states' justifiable defense,as well as the imperfect defense and the application of homicide by abused women in the defense rules.It can be seen from the content of the enactment that the states divergent from the Model Penal Code in the enactment of the defense system.On the one hand,most states chose to depart from the traditional common Law rule that the obligation to retreat before the use of deadly force must be performed,and established the "Stand on Your Ground Law".On the other hand,in the identification mode of defense behavior,most states adopt the subjective identification standard,which broadens the applicable conditions of justifiable defense.Thus it can be seen that the American system of justifiable defense is not a passive successor to the common law rules,but a combination of the actual conditions of the country and the states.In order to carry out the purpose of defense based on human,it has made the greatest efforts to construct the applicable standard of justifiable defense in detail at the legislative level and provide relatively clear guidance for judicial precedents.The fourth chapter takes the typical cases of American justifiable defense as the research object and witnesses the development process of American justifiable defense from the judicial practice.This chapter selects five justifiable defense cases to present the reform process of justifiable defense in the judicial application of the United States from different perspectives.The first case is the famous case of Beard v.United State,1895 which was decided by the Supreme Court in the history of the United States.This case approved the "Modern Castle Doctrine" for the first time in the United States,which has an important influence in the history of American jurisprudence.The second case is Brown v.United State,1921.The presiding judge of this case is the famous American Justice Holmes.Holmes put forward the famous legal maxim in this case: in the face of a raised knife,the party should not be required to have a reaction beyond nature,which laid the foundation for the development of American Stand Your Ground Law.The third precedent,People v.Goetz,1986.is one of the most controversial cases in recent American history,a case involving the use of subjective and objective criteria to judge the use of deadly force in self-defense.This case involves not only the question of self-defense,but also the deeper question of moral and legal responsibility.The fourth case is State v.Kelly,1984 which is a typical case on the application of justifiable defense in the case of the murder of her husband by abused women.The fifth case is People v.Ceballos,1974 which is an important case concerning the interwoven issues of property defense trap devices and residential defense.The fifth chapter,on the basis of the existing analysis,with Germany,France and other civil law countries and China as the reference,summarizes the characteristics of the justifiable defense system of the United States and the influencing factors,this paper tries to find out the problems and solutions in China's justifiable defense.From the perspective of legal history,the American justifiable defense system is derived from the English common law rules,and on this basis,it has been transformed into a criminal defense that is more suitable for the American values.From the point of view of the legislative system,the states take the Model Penal Code as the blueprint,and some states change it according to their own circumstances.In legal form,justifiable defense has been strictly classified.On the principle of defense,the theory of less harm is the main theory,and the theory of autonomy is the supplement of judicial application,the biggest characteristic is to pay attention to the subjective cognition of the defense person,and the judicial and legislation are relatively unified.Comparatively speaking,the main dilemmas of China's current justifiable defense include: in judicial practice,there are only a few cases of innocent judgment due to justifiable defense.Legislative abstraction and vagueness lead to the confusion of judicial application;Lack of clear judgment standard in legislation;Judicial practice pays attention to practical value and lacks theoretical guidance.Therefore,as far as the problems of our justifiable defense are concerned,we should rethink the theoretical basis of justifiable defense,divide the types of defense in detail in legislation,and introduce the subjective identification standard of reasonable belief.At the same time,it pays attention to the accurate positioning of the judicial function so as to solve the crux of the "result-oriented theory" existing in the judicial application of justifiable defense cases.