A Topic On Unjustifiable-defense

Unjustifiable defense -related problem has been concerned since it emergences. In the process of towards society governed by law, behaviors never hesitate to do what is right are especially valuable because it not only to the awakening of civic consciousness of the Legal Sense, but also highlight the affirmation of the state on this sort of behavior, and such behavior is more involved in the distinction between justifiable defense and unjustifiable defense, especially the determination of unjustifiable defense, which is common occurrence in judicial practice. Although our country draws on a number of foreign instances of legislation of unjustifiable defense, the requirements of unjustifiable defense are many differences between home and abroad. Unjustifiable defense is the defensive behavior that significantly exceeds the condition of reasonable force and causes significant damage, the characteristics of unjustifiable defense, mainly used to distinguish the differences of other general crime, due to the nature of specificity in unjustifiable defense, which constitute main body, subjective conditions, object and objective conditions, while the study on the subjective conditions are significant differences. The first four elements (the actual existence of illegal infringement; criminal violation is ongoing; targeted against violator himself may be implemented; protecting the legal rights in order to avoid unlawful infringement) and in accordance with justifiable defense, while the last one element---the defensive behaviors exceed reasonable limits that causes significant damage, which is inconsistent with the justifiable defense, and exactly the difference between unjustifiable defense, and justifiable defense. Justifiable defense is doer who takes a method and urgent measure that harms the property and interests of the perpetrator in order to achieve the purpose of protecting the legitimate rights and interests. Justifiable defense has the nature that can not to bear criminal responsibility, which define the limits of unjustifiable defense is also a method to prevent the doer escapes punishment, although both are more clearly divided in theory, it would have ambiguous phenomenon in practice , distinguishing them would have positive significance in theory and practice. Punishment fits the crime can not be equal to general crime. The value of selected topic in this paper is that although our country has made it clear provisions on the unjustifiable defense and loaded in Criminal law of the People's Republic of China, scholars and the judiciary still have many controversies on it, which also proves the value of the discussion on unjustifiable defense, the author takes this text to indicate the main points, the research methods, in addition to reference to cases of domestic and foreign instance of legislation, there are many cases which take the analysis model.Full-text is divided into five parts, and about 20 thousands words.Part 1 Taking the internal and external of visual angle to show situation of study on unjustifiable defense; Briefly discusses the concept and characteristics of unjustifiable defense in order to identify difference from other crimes.Part 2 Discussing the constituent elements of unjustifiable defense, and defining its scope; Mainly analyzing the subjective conditions of unjustifiable defense.Part 3 Stating the limits of unjustifiable defense; Indicating the difference from the self-defense.Part 4 Briefly discusses the punishment fits the crime of unjustifiable defense.Part 5 In conclusion, full text summary.