On The Basis Of Justifiable Defense

Justifiable defense is behavior aiming in stopping the ongoing illegal violations of the right of persons within the scope of not causeing significant harm .With regard to the basis of justifiable defense, there are different theories:the theory of the right (including the theory of the natural right, the theory of the legal right as well as the combination of natural rights with legal rights), the theory of the unpunishable act (including the theory of "evil against evil", the theory of "moral restraint ", the theory of "rights and duties", the theory of " illegally invalid "), the German criminal law theory think that the principle of "preservation of the individual" and "Law conclusive evidence " is a legitimate basis of justifiable defense, in Japan, there is the controversy of theory of preservation of law , the theory of preservation of man , the theory of corresponding of society, the theory of interests confirmed by law, the theory of legal interests of non-existent, narrowing, the theory of superior interests. In addition, there is a view that there are three levels with the basis of justificable defense, namely, the basis of philosophy is the unity of the right and the power; the basis of law is a combination of punishment and prevention; and the basis of morality is the unity of order and justice. This paper is based on introducing and reviewing the above-mentioned point systemly and thinks the basis of justificable defense resting on the legitimacy of justifiable defense, as well as the need for urgent defense.The legitimacy of justifiable defense is a proper conduct that the defense of justificable defense based on knowledge of unlawful infringement implements in order to curb the being damaged.The content includes the legitimacy of the purpose ,the legitimacy of the means and the legitimacy of objects choosed. For this basis this paper is argumented from follows: the legitimacy is the need of humanity;the legitimacy is the coodination of man's chasing of interests and social benefits available from the nature; is requirements of the way that human meet their own needs; is needs of consensus on maintainning social basic value; is the embodiments and requirements of "common feeling "; is a reflection of the requirements of the order ,and so on.The necessity of urgent defense is the perpetrator have the defense necessary when they face urgent violated. The content of it is mainly related to these three aspects of the illegal nature of abuse, the reality of abuse as well as real threat of legal interests. On this basis this paper is argumented from follows: the basis of the Constitution (the necessity of urgent defense as the baisis of justifiable defense in accordance with the provisions of the Constitution on "the state respects and safeguards human rights"), the basis of Criminal Law (the necessity of urgent defense as the baisis of justifiable defense in according to the value basis of the criminal law - "punishing crime,to protect the people ", in according to the requirements of the principle of equal application of criminal law and consistent with the principles of penalty corresponding to crime ,in line with the provisions of the Criminal Law on justificable defense, and intercoordinated with the provisions of criminal attempt) and the basis of the Code of Criminal Procedure (the necessity of urgent defense as the baisis of justifiable defense in accordance with the provisions of the Code of Criminal Procedure on citizens seized and turned over criminals), etc.To justifiable defense is based on the guidance, this paper re-defines the conditions for justifiable defense,namely that the cause on condition is pressing the existence of unlawful infringement; time on condition is that as long as there is the urgency of illegal infringement, there is an urgent need for justifiable defense or should not be beginning and end as time on the conditions for justificable defense;object on the condition is the illegal persons and their interests; subjective condition is a self-defender of justifiable defense recognizes that it is the urgency of unlawful infringement,their behavior is against unlawful infringement and does not exceed the limits; limits on condition is that insist on the necessity of justifiable defense and the equivalence principle,namely defensive behavior is necessary to stop the unlawful infringement, but damaging the illegal persons severely for a very minor interests.