| China’s criminal law defense system is an important system of defense for the defense of human behavior or the nature of the crime of conviction is important.Criminal law in our country there are about 79 self-defense provisions, the revised criminal law defense system 97 has made significant changes to relax the conditions for self-defense, for encouraging citizens and the ongoing fight against illegal violation of important Meaning, in order to protect the national, public interest and legitimate rights of citizens from being violated. Only the correct understanding of the system and take a firm hold in order to make criminal justice to be done, can the human rights of citizens are protected. However, as an important criminal law system, self-defense system, how to become a national criminal law the crime of statutory subject matter, one that negates the law? Scholars have put forward various theories as to demonstrate the basis of justified self-defense system, with practice and time, assome theories obviously outdated, obsolete, and some new theory emerged, so,not the subject of Members generally agreed to form a view, there is some controversy. This paper on the issue of the research scholars to sort out and put forward their views, in order to initiate the improvement of our defense system to provide a little help, also to guide citizens to the extent permitted by law and to the extent the right to exercise right to due process, So that the system has stopped the illegal violation, protect the’lawful rights and interests, maintain social order to play a more fully effective. This paper argues that self-defense system of the main reasons why they have legitimate rights of the individual self-protection is to maintain law and order and confirm the effective integration of law and the defense and the infringement of legal interests between the measure of a relative lack of either One pair of legitimate self-defense does not have a satisfactory explanation of sex would biased. To the two reasons as the base, can the conditions and limits of self-defense conditions of the time to make am ore reasonable explanation, and defense against state actors, acts of public interest does not have a reasonable explanation.In civil law, particularly in Germany and Japan, all the scholars put forward a variety of self-defense justified based on the view, look at a variety of perspectives, relatively reasonable point of view or "self protection "and "method of confirmation, "a combination Theory, but even so, I think, justified on self-defense is not fully in place according to the interpretation, but rather from the "national and personal, "and.between "individual and personal" between the two main lines were considered as legitimate Defense system involves the legal relationship to both:namely, first, the state monopoly right to use the penalty and personal self-defense trade-off between the legal relationship; second, between the defense against the legal interests and legal relations measure. Only these two aspects in order to legitimate self-defense based on telling it clear why, in order to find a reasonable basis for justified self-defense.Defense system has undergone a long and tortuous process of development, its history dates back to primitive society has been. Primitive society, low productivity, personal defense against foreign disasters or lack of capacity, the clan came into being, the clan as an effective defense to make up for a personal lack of foreign disasters. Because the clan members are close blood relations with relatives, this time against any external is against the whole clan, whether a violation is the only member of the clan or the for the entire clan. Each member of the clan in this case has a duty to resist foreign invasion, because the clan members by blood relationship to maintain, so this obligation is known as blood revenge revenge. Can be seen, the human in stinctis no longer a spontaneous defense, but gradually with the community property, and thus formed a self-defense of the oldest forms:blood revenge. With the further development of private ownership, kinship increasingly relaxed, the clan system began to crumble, subject and object of revenge, where the entire clan from the tribe reduced to a single individual, evolution of blood revenge for private revenge. The establishment of national, state monopoly over the exercise of the right punishment to blood revenge as a defensive form of history. Penalty as revenge form of civilization, but it did not completely replace the revenge, and in some cases, the justice of revenge generally accepted by society. The embryonic form of self-defense is to defend yourself, family and friends right from the infringement, it is transformed from the animal instincts, can not be eliminated, the entire community must berecognized, even after the establishment of monopoly of state exercise of the right punishment, still can not deprive Citizens of this nature, it is legitimate self-defense behavior of one of the reasons whyAlthough self-defense from the human survival instinct, which since ancient times was considered a legitimate act, and the corresponding code in the embodiment of the civilization of human society with the progress of the evolution of self-defense thinking has also been manifested in the national Established, the society has become more and more relaxed, the more perfect social system, as the implementation of the national public affairs organization, the right to assume the task of protecting the state more powerful, more public remedy wide range of And the way of private relief was compressed into a relatively small range, so that the power (Lee) in a qualifying position of a very humble."the rule of law countries, should not allow private exercise of private power to prevent or resolve legal interests against or legal conflict of interest, but should by the state authorities according to legal procedures to protect:the legal interest, to resolve law conflict of interest principle, as to allow private relying on individual private power The legal interest protection,-but lead to confusion in legal order. "This is an evolution of self-defense thought the basic idea. Quality words, the state legislature sought through the values, when in a defensive position should have been the absence of state authority, should adhere to the legal order by the individual against unlawful infringement of legal interests; a variety of criminal violations had been self-defense Not only against the legal order that is prohibited, and further stabilize the legal order.From the historical evolution of self-defense system can be seen, personal defense and the maintenance of legal order there is a trade-off between national defense relationship. Defense and more primitive instinct out of defense, and often is both right and is compulsory, the larger the scope of the exercise. To a slave society, feudal society, right to due process to be relatively small, the Enlightenment thinkers of the Enlightenment through the early capitalist society has again become an unlimited expansion of right to due process, without any restrictions, with the law, the process of socialization, the modern legal system of social re-Strictly limit the use of right to due process, in which the history of game development, the scope of the exercise of individual citizens right to defense is getting smaller and smaller, and more standardized, subject to various restrictions. Overall, the current defense system is conclusive evidence of self-protection and the law combined with the product of thought.This meaning of "substantial legal interest" of not merely the act of self-defense and defense protection of legal interests against those who acts causing damage to the legal interests between the simplex method to measure, but to include the protection of legal interests and defensive behavior against those who caused Measure of damage, including between legal interests, and comprehensive survey of the adequacy of defense, the necessity of a comprehensive concept, so that the protected legal interest and defensive behavior against those who caused damage to a roughly equal legal interest, can not clearly unbalanced.Because in the open and pluralistic society, human relations, the situation is not the polar opposites of good and evil, but must pay attention to the mutual respect between people of the legal order foundation. Self-defense is not violence for violence, but there lie in the state power when not in time to allow the defense of people to defend the infringement, to declare the existence of law and order. The right of self-defense system of punishment is different from most countries, the main reason is that self-defense against criminal behavior is directly repel, not punitive, the defense were not the right punishment, but the state is its own punishment of crimes the right to direct the performance penalty With punitive. Therefore, the defense must bear some of the freedom of self-restraint, self-defense only in the legal order with all manner not in conflict, it has legitimacy. Quality words, if only when the need for self-defense, but not quite of legal interests, the defense must tolerate the burden of obligations which would otherwise cause a serious imbalance of legal interests, constitute over-defense.From the judicial practice, the defense establishment to determine whether a particular act, the difficult conditions and often is the time limit conditions. Identification of the limit conditions regularly depending on the time conditions, therefore, a long time, criminal law theory the focus of discussion focused on the time conditions. While it is possible that the "unlawful infringement is occurring" refers to the unlawful infringement has begun but not ended, however, to accurately judge "has begun" and" not over" is not easy. This is so because "the unlawful infringement is taking place" is not just a concept of time, and its defense system directly reflects the value of conflict behind it. In fact, if not to justify self-defense according to the starting point of the defense is difficult to give reasonable time to define the conditions.Tong said that the violations should be considered as acts of the urgency of whether an element of self-defense can begin, however, in reality, too many cases, if applied to explain the urgency of the case and the simple method would be emotional odds, we know that The implementation of the law can and should only be felt from the general public the rational rules extracted. In the social security situation is still grave (serious)criminal violations have occurred, but the overall benefits of public power, China is not satisfactory at this stage, and expand the scope of the establishment of self-defense, uphold the right and reasonable criterion, that is, The need to preserve the interests of the standard elements of the defense time to judge, to make laws to better fit the applicable legal environment in China.Any of the legal systems of social protection and human rights need to maintain a reasonable tension between security, criminal justice system, too, the self-defense system as a system of criminal law also requires taking into account the protection of society, the protection of civil rights, Between the two maintain a relative balance."Requirements for self-defense act, though not the only means to be the last, but still need to consider the degree of defensive behavior against the balance between the relationship between the defense of people try to be the most flexible means of defense, as to what kind of defensive behavior in line with the need for And appropriateness, it would take the case from the infringement, against the intensity, the means and dangerous violations, as well as defenders of the defense from using the possibility of observing the situation as a whole, which determine the representation of all legal interests must be fairly Nature as a guide and kernel, when legal interest which does not have quite serious imbalance of the ther auxiliary judgments are of no significance. The state will against the state, public interests of the self-defense in the hands of the people, the face of it, is the expansion of defense against the acts of the public to protect the legitimate rights and interests of freedom, but in essence, that behind the decentralization and assignment Hidden is not appropriate to pass on State responsibility, the state gave up their fight against crime, protecting the legitimate rights and interests of citizens, the obligation to maintain good order in society, which is a behavior irresponsible laissez-faire, non-rational. |
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