Theoretical Research On The Limit Condition About Self-defense

The limit condition of the self-defense, is a key question in the self-defense theory. During the process of revising to the new criminal law, the limit condition of the self-defense is a focus question which has received the general concerns of different fields. This text has investigated legislation developing and key theory of the limit condition of the self-defense, and gives research on the legislation and administration of justice about the limit condition of the self-defense. The author 'opinion is mat the 2nd paragraph of article 20 of new criminal law is the limit condition of the self-defense; The 3rd paragraph of article 20 of new criminal law is not a special regulation about self-defense limit condition, and the new criminal law has not been entrusted to the right that the citizen can defended limitlessly. As to the legislation of old criminal law stipulated, legislation mat the new criminal law uses reflect the enhancement of the legislator's knowledge about the objective law of defend behavior. The regulation of new criminal law does not demand the defend behavior encroach on the machinery between the behavior reciprocally, and the behavioral limit standard to relax in the rational range appropriately in order to protect the legitimate rights and interests of defending people. We should pay attention to the following question in understanding the 2nd paragraph of article 20 of new criminal law. First of all, the term " essential limit" is a key word about the self-defense limit regulation of both the new and old criminal law, and " essential limit " is limit condition of the self-defense in old criminal law. It has different meanings in the new criminal law, Secondly, " cause great damage" doesn't means the body damage only, the property damage should be regarded as great damage also; Moreover, " exceed essential limit obviously " and " cause great damage " forms the limit condition of self-defense together, none of them can be dispensed with. Judge, should around defend as to limit administration of justice of terms behavior with law benefit weigh. On burden of proof at the same time, it should pay more attention to defending people' interests. The regulation of the 3rd paragraph of article 20 of new criminal law can understand like mis: While encroaching on the violence of threatening the security of rights of the person seriously, defend people adopt large defense of intensity behavior enough to achieve the goal of defending under the most situation. If it doesn't have sufficient evidence on the administration of justice that prove defends the person to have the obvious retaliatory strike behavior, it must be think that the defense to defend people behavior accord with self-defense limit condition.