On Valid Element And Legislation Perfection Of Justifiable Defence

Although abundant research about justifiable defence have been made by scholars in our country as well as quiet great progress has been made by new criminal law on justifiable defence system , but there are still some misunderstandings on valid element of justifiable defence. At the same time, the justifiable defense system is not perfect. As a result , this paper tries to study the of justifiable defence. The whole passage is divided into three parts:The first part is about the research on valid element of general defence. In this part , the writer discuss the foundation condition , opportunity condition, object condition, subjective condition and limit condition. With regard to foundation condition, this paper points out that actually the"unlawful infringement"is an action which goes against the law, the so called"subjective theory"and"external theory"cannot be the criterion to judge whether an action is"unlawful infringement". In succession, this paper discusses the following four problems in turn: Suppose the"unlawful infringement"is misstep, accident , nonfeasance or undue defence ,can we exertion defense-right ? With regard to opportunity condition, different from traditionally standpoint, this paper opportunity condition can be divided into two types: the first is active condition——rights and interests are being intimidated directly ,the second is negative condition——cannot gain assistance from government in due course. In succession, this paper discusses the following two problems: First , whether setting safeguard in advance is justifiable defence; Second , whether infringing repeatedly is justifiable defence. With regard to object condition, this paper argues that we can exert defense-right to unaccountable person. With regard to subjective condition, the writer oppugns the traditional standpoint, represents that the subjective condition is defence cognition, ex defence intent. With regard to limit condition, this paper believes that the limit condition is not exceeds necessary limit, while not the prevalent"exceeds the limits of necessity and causes serious damage". Among the following three viewpoints——"Corresponding basically theory","necessary theory"and"eclectic theory", the"necessary theory"is excellent.The second part is about the research on valid element of special defense. At first , the writer attest that special defense still has limit condition. Then, the writer argue that there are five necessary elements in special defense. In respect that the main dissimilarity between general defence and special defense , this part mostly discusses foundation condition of special defense. Besides, another two important problems are been discussed in this part : the first is whether person except the victim has right to exert special defence-right; the second is whether special defense-right can be exerted to unaccountable person. In our opinion , the answer to the first problem is positive while the second is negative.The third part is about the research on limitation and perfection of justifiable defense system. In this part ,the writer firstly compare provisions on justifiable defence between China and other countries and regions, point out that there are two aspects limitation in our criminal law : one is linguistic, the other is entitative. In our opinion, in order to perfect our justifiable defense system ,the following three suggestions should be adopted: (1) Abolish special defense system; (2) Section 1 of article 20 should be modified as"A person who is conscious of that interests of the State and the public, or his own or other person's rights is faced with urgent danger adopts necessary measure to assault the perpetrator to stop the unlawful infringement , is justifiable defence."Section 2 of article 20 should be modified as"If a person's defensive act obviously exceeds limits to overwhelm the perpetrator, causes serious damage, he shall bear criminal responsibility; However, he shall be given a mitigated punishment or be exempted from punishment. While the above-mentioned act is owe to ghastfulness, consternation, excitation or excessively panic-stricken, he shall be exempted from punishment."(3) Section 3 of article 20 should be designed like this:"when the perpetrator is incapable, people still have right to exert defence-right."...