Researches On The System Of Non-excessive Defense In New Criminal Of China

Non-excessive defense is a supplementary system reply to forcible crime in order to encourage the citizen to fight against the criminal behavior bravely and to realize the aim of criminal law, to attack the committed crime and to protect the legal benefit of the citizen under the severe situation of the social security. The third paragraph of article 20 stipulates that It is not a defense exceeding the limits and criminal responsibility shall not be borne for a defense that a person undertakes to an immediate forcible crime such as violence, kill, rob, rape, kidnap and other commit crime threatening the security of the person seriously and cause unlawful infringement people die. This provision is very provoking and leads extensive disputes. Some of them judge it by the legislative values, some of them analyze it from the design and interpretation of the article. The agree side believe that the system of non-excessive defense is a successful methods which attack the forcible commit crime severely and highly definite the power of self-relief of the citizen. The against side believe insist that this system has the possibility to raising the abuse of defense right which then leads the complete ignore of the legal benefit of the infringement people and makes the justifiable defense system impracticable and so on. This paper demonstrates the necessity of the amendment and perfection of the third paragraph of the article 20 in the current criminal law and offers the suggestion of the amendment and perfection, on the basis of the concept, the historical development, the nature, the characteristics and the value location of the non-excessive defense and the valuable criticism, the elements of foundation, the defect of the article design and the contradiction possibly encounter in practice of the non-excessive defense system in the new criminal law of China.This paper consists of four parts:In the first part, the historical development and current legislation ofdifferent countries are researched. The second part describes the historical background, the nature, the characteristics, the value location, and the valuable criticism of the non-excessive defense system in new criminal law of China.The third part focus on the elements of foundation and the defect of current article design of the non-excessive defense system.The fourth part offers some suggestion of the perfection of the non-excessive system.