The Nature Of Legal Defence

Legal defence is a very ancient topic for study, issues on allaspects of which have been sophisticatedly discussed in the legal theory,and which also has been the theme of several domestic LLM's discoursesand LLD's discourses. However, the great interest in this topic impelsme to choose it as the theme of my LLM's discourse. The abundantlyexisting study production of this topic has been the convenient referencefor me when I make reconsideration on it, yet it is more difficult forme to make a breakthrough on it. Especially, after the amendment andstipulation of Criminal Law (1997), there saw a lot of articles on legaldefence published. Whereas, I hold an unchangeable belief that some ofmy viewpoints about the basic issues on legal defence are yet to beenunciated, therefore I attempt to discuss legal defence on a differentaspect on my own comprehension and viewpoints. Refer to legal defence, scholars normally talked about therelationship between legal defence and remedies of right, thus I decideto elucidate some basic issues of legal defence on the aspect of remediesof right. This article is totally amounted to 34,000 words, made up by 1two parts--defining the nature of legal defence on the aspect of remediesof right, reconsidering legal defence on the basis of its nature(exceptthe introduction and conclusion). Part I: defining the nature of legal defence on the aspect of remediesof right. With the basic theory such as the concept and classificationof remedies of right, I analyze the relationship between legal defenceand remedies of right in this part. Through the analysis, I make theconclusion that legal defence is not a mode of relief by private forceas usually deemed by some scholars; on the contrary it has a nature ofrelief by public force, which is an extemporaneous right-protectingmeasure in the whole process of relief by public force. It is such kindof nature that determines the incompletion of the function of legaldefence. Furthermore, I think that to make clear the nature of legaldefence—whether it is a mode of relief by private force or relief bypublic force—is helpful for the establishment of people's faith in law. Part II: reconsidering legal defence on the basis of its nature.To put it simply, this part is based on defining the nature of legal defencein the Part I and makes explanation on some basic issues of legal defence.Four issues are discussed in this part: the evolution of legal defence,the relationship between legal defence and human rights protection, thecomprehension of crime as the opposite of legal defence, the function andsignificance. The guiding ideology of this part is that legal defence isonly one of secondary and extemporaneous means of relief by public force,so we should not take too much expectation on it; and the excessivedependence on legal defence would cause the dissimilation of its function,losing the limit on relief by private force and stirring up violence. I talk of my own understanding concerning legal defence on acomparatively abstract and theoretical way in this article, and do notattempt to solve many practical problems. As this article is only based 2on my own thoughts, so I look forward to further discussing it witheveryone.