The Pursuit Of Balance Between The Illegal Attack And The Defense

Our present Criminal Law revised in 1997 (which is called " New Criminal Law" for short ) has greatly modified the 1979 Criminal Law .Among the all modifications ,the modification on the self-defense has become the focus of the discussion among criminal law researchers .In the 1979 Criminal Law ,the Self-defense adopted the principle of limited defense .The 17th provision of the law specified : "The person who resorts to the self-defense to prevent the public interests,the personal interests and the personal and other rights of other people from the proceeding illegal attack need not take the criminal responsibility. But if the self-defense has exceeded the necessary limitation and created the harm which ought not to happen , the person should take the criminal responsibility, however, the punishment on him should be lessened or released according to the situation." As the rule of defense beyond limitation in the 1979 Criminal Law is too noncommittal and not scientific, yet in the actual enforcement ,the defender who makes for the harm and death of the illegal attacker can not be affirmed and supported by law. On contrary,he will take criminal responsibility. According to the above situation, in order to enhance the blow to the crimes and encourage people to combat the criminals bravely and resolutely, the new Criminal Law revised in 1997 not only strictly limits the conditions of defense beyond limitation, but also specifies in the 3rd item of the 20 th provision: "The self-defense against the proceeding homicide,killing,robbery,rape,kidnap and other violent crimes which seriously jeopardize the personal safety and leading to the harm and death of the illegal attacker, is not the defense beyond limitation and is not required to take criminal responsibility." Therefore, the new Criminal Law offers the right of infinite defense to our citizens in the form of law when they face criminals who seriously jeopardize the personal safety due to the proceeding violent crimes. It is the first time to affirm the right of infinite defense in the legal form after the foundation of PRC and it sets a precedent for the criminal legislation of the right of infinite defense. Thereby, criminal law researchers have carried on a debate. The supporters and the opponents both hold their own views. Some scholars think the legislation of the right of infinite defense is very important practically and historically to encourage citizens to fight with crimes bravely and actively. But other scholars believe the legislation of the right of infinite defense may not be evaluated highly no matter it is reviewed on terms of the whole value or the practically proved effect. They argue that we should abolish the rule on the right of infinite defense thoroughly in future modification of criminal law. Because of varieties of researches on the right of infinite defense theoretically and practically, the article tends to treat it as the perspective of the discussion. The article will start from the definition,the source,and the history evolution of the infinite defense, followed by the legislation background and the existence conditions of it in our new criminal law and then search the value of the legislation of the right of infinite defense to pursue the balance between the illegal attack and the defense.