| Self-defense is an important system of modern criminal law.In the legislation of the criminal law of self-defense,there are different legislations in different countries.Some countries adopt more elaborate legislative methods,that is,in addition to general defense(ordinary defense),there are also provisions for special defense.China’s criminal law in 1997 established a special defense system to encourage citizens to fight against violent crimes,but the current situation of judicial application is not satisfactory.This paper uses value analysis,comparative research,empirical analysis and other research methods to discuss and analyze the jurisprudential basis of special defense,the plight of zombies,the establishment conditions,and the procedural dimensions,in order to strengthen the research of special defense,relieve the plight of special defense zombies,and broaden the research field of legitimate defense.There is a deep jurisprudential basis behind special defense.The problem of humanity is the logical starting point.The violent crime targeted by special defense is the typical embodiment of humanity evil.The selfish intention of judicial personnel to avoid personal professional risk is also the embodiment of humanity evil.Defending others is altruistic,which is the outstanding embodiment of human kindness.Judicial personnel should take judicial responsibility,adhere to justice,and abandon selfishness,which is the key to human kindness and guidance.The value basis is motivation and purpose,especially defense is the type of legal violence in the order guarantee mechanism,is the right of defense under the correction of justice and procedural justice,and is an important means to protect the right of freedom.Cultural support is an internal force.In particular,defense legislation and justice should balance the concept of reason and law and the concept of life,follow the scientific concept of social governance,and abandon the concept and method of "stability first" and "muddle" dispute handling.The current situation of judicial application of special defense is not satisfactory and has become a zombie clause.The causes of the current situation of "zombie" include theoretical,legislative,judicial and other factors,mainly the legislative ambiguity of the nature of the clause and the establishment conditions,the theoretical deviation of the establishment conditions such as the premise and time of special defense,the improper judicial application concept and the strict judicial standards.In 2018,the Yuhaiming case triggered widespread attention from the whole society to special defense.Since then,hot cases of special defense have been frequently reported.The Supreme People’s Court,the Supreme People’s Procuratorate and the Ministry of Public Security have issued judicial interpretations of self-defense,and the Supreme Court and the Supreme Procuratorate have issued a number of special defense guidance and typical cases,and repeatedly and clearly released the identification and application signals of untied special defense.Accurate definition of the conditions for the establishment of special defense is the prerequisite for the identification and application of special defense.This article believes that special defense needs to meet five conditions: cause condition,time condition,object condition,subjective condition and limit condition.First,special defense is aimed at specific illegal infringement with a narrow scope.Violent crimes that seriously endanger personal safety are the core characteristics of the cause conditions.The commit physical assault or murder can be identified around two major factors,namely,the danger of means and the danger of results.Murder,robbery,rape and kidnapping should be limited to those with serious violence.Other violent crimes seriously endangering personal safety shall meet the conditions of "seriously endangering personal safety",including but not limited to the crime of hijacking aircraft,the crime of riot and prison break,the crime of gathering people to rob prison with weapons,and the compulsory indecency crimes that seriously endanger the personal safety.The criterion for judging whether there is a "violent crime" should be reasonable conviction.Second,only against the "be in progress" unlawful infringement can we defend ourselves."be in progress" means a process.It is necessary to introduce the concepts of current and urgency to assist judgment,and take the urgency as the basis for defining the defense time.Compared with general defense,the time conditions for special defense should be appropriately lenient,and the principle of benefiting the defender should be adhered to in case of doubt.Generally speaking,the starting time of special defense follows the principle of taking the beginning of violent crime as the basis and taking the urgency of the beginning as the supplement.The ending time is discussed specifically according to three different situations,namely,the crime of completion,the crime of state and the crime of continuation.According to the urgency of seriously endangering personal safety,the time conditions shall be determined separately for the three special cases of continuous violence crimes,repeated violence crimes and transformed violence crimes.Third,the target of special defense is the perpetrators of serious violent crimes.From the perspective of humanitarianism,the traditional ethics and morality of protecting the weak and the social equivalence,the special defense against the unlawful infringement of persons without the ability to be responsible should be limited.Special defense against joint offenders is a complex issue,which needs to be identified separately for joint perpetrators and other nonjoint perpetrators.In order to stop serious violent crimes,the defender can counterattack any one or more perpetrators,but for non-performance criminals such as organized criminals and helpers,it should be judged according to whether the defense of non-performance criminals can achieve the purpose of stopping serious violence.There are three special cases of accomplice,such as over-limited perpetrator,one-sided accomplice and indirect perpetrator,which also need to be judged according to whether the implementation of special defense act can achieve the purpose of stopping serious violence.Fourth,the subjective condition of special defense consists of defense awareness and defense will.When there is an error in understanding the cause condition,time condition,object condition,etc.,it is generally treated as a fact understanding error.The psychological state of causing injury or death to the infringer under the control of defense intent is not criminal intent,and defense intent and homicide intent cannot coexist.The determination of special defense intention is the key to the problem of whether the special defense can be conducted against the infringement incurred by oneself,the infringement in the process of fighting,the infringement in the process of "eating black" and the torture for the purpose of rescue.When several kinds of situations,such as self-inflicted infringement and assault in a fight,meet the cause conditions of Article 20 of the Criminal Law,and the counterattack person has the purpose of stopping the infringement,he can take special defense.Fifth,special defense also has necessary limits.In judicial practice,there is a phenomenon that the special defense space is too much squeezed by excessive defense.We should adhere to the "dichotomy" judgment path and the judgment standard of the defender in the matter to correct the practical deviation.The principle of serious injury without undue defense is applicable to special defense.The vast majority of the death of the aggressor belongs to justifiable defense.However,when the defender has the ability to accurately control the degree of damage and unnecessarily cause the death consequences of the illegal aggressor,there is room for special excessive defense,which may constitute the crime of intentional homicide or the crime of negligent death.Special defense and ordinary defense are two specific types of self-defense stipulated in our Criminal Law.Special defense and ordinary defense are inclusive relations.Special defense is an integral part of justifiable defense,not a special type of self-defense,but also has defense limits,but special defense has independent value.Special defense is different from ordinary defense in terms of establishment conditions.Compared with ordinary defense,special defense is more narrow and specific in terms of causes and conditions for specific illegal violations that seriously endanger personal safety.The time conditions,object conditions,subjective conditions and limit conditions of special defense are also more relaxed than those of ordinary defense,and should be appropriately lenient.The use of force by the police is a statutory act,and there is a cross between the act and the special defense of the same legitimate act.The police can take special defense in specific circumstances.In view of the special status of the police,there are obvious differences between the use of force by the police and the special defense in terms of the scope of illegal infringement,time conditions,object conditions,subjective conditions,the need for advance warning and limit conditions.Special defense is both legal judgment and factual judgment.Under the thinking of criminal integration,it is necessary to examine special defense from the procedural dimension.Special defense,as a cause of crime,is of great significance to the accused.However,in special defense cases,the contradiction of testimony is large,"murder in secret chamber" and "death without proof" are common.Improving the litigation system and procedural mechanism can ensure the correct handling and determination of the case.First,improve the special defense litigation system.Establish the allocation rules of the burden of proof that the defendant should assume the responsibility of putting forward and the judicial organ should take the initiative to identify and explain,and apply different standards of proof to the prosecution and defense.In order to strengthen the antagonism between the prosecution and the defense,expand the right of the accused to defend himself,improve the right of the accused to obtain the help of a lawyer and other methods to protect the right of the accused to defend.By expanding the application of non-custodial coercive measures and increasing the review and change of pretrial detention,we can improve the system of personal coercive measures and guarantee the personal freedom of the accused.Second,follow due process.Justice and injustice that are late,follow the "procedure forward" rule,and special defense should be identified in time at any stage of investigation,prosecution and trial.In order to ensure the accurate review and determination of special defense,specific rules for the determination and application of special defense at different stages of investigation,prosecution and trial should be added.For example,the investigation link should ensure the whole process of interrogation,timely request the procuratorial organ to intervene and guide the investigation,establish the business opportunity system of the expert meeting,etc.,the procuratorial link should strengthen the experience of the review and prosecution process,use the procuratorial hearing,and use the "case-to-case ratio" indicators,etc.,the trial link should ensure the effective participation of the defender,open the process of the judge’s testimony,and implement the deviation report system.The expectation of special defense legislation has not yet been realized,and it should be improved in legislation and judicature.First of all,based on the vague positioning of the special defense and the swing of the criteria for its establishment,it is suggested that the legislation should be adjusted and improved in terms of amending the terms of the articles,optimizing the expression of "violent crimes seriously endangering personal safety",adjusting the order of the articles,and increasing the exemption reasons.Secondly,combined with the deviation of judicial application,it is suggested to carry out judicial improvement from the following aspects:updating the judicial concept of special defense,improving the judicial criteria for the identification of special defense,standardizing the procedural rules of special defense cases,and improving the reference case system of special defense. |
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