| Special defense, also known as "special defense", refers to the implementation of self-defense behavior of citizens in certain circumstances, no need to limit the restrictions and not criminal liability situation for any consequences of their defensive behavior. The provisions of Article20, paragraph3, of the Criminal Law of China: going assault, murder, robbery, rape, kidnapping and other violent crimes that seriously endanger the personal safety and take defensive actions, of unlawful infringement casualties, and does not belong to over-defense, not criminally responsible. Special legitimate defense, in addition to the requirements of unlawful infringement in progress, the defense defensive awareness, defense against unlawful infringement, more importantly, the condition is going assault, murder, robbery, rape, kidnapping and other serious endanger personal safety of violent crime defense.This paper is divided into four parts, the first part of an overview as a special defense, respectively, discussed the general theory of special defense, special History defense, and special defense apply general principles.The second part discusses the theoretical basis of the special defense, including:the risk of considerable theoretical and infringe on the personal interests of the zero protection theory. Applicable to the defense without looking forward to the possibility theory.The third part discusses the legislative and evaluation of foreign special defense, mainly from the British legislation, the U.S. legislation, the German legislation, the French legislation, legislative Japan to study and examine, and then clear the common law system and the civil law countries, legislation is primarily about self-defense system characteristics.The fourth part discusses the provisions of the Criminal Law sinks constitute conditions of the special defense, is divided into:the causes of the conditions, time conditions, object conditions, the subjective conditions, and restrictions. The fifth part of the core content of this article mainly discusses in particular the defense power of the Legislative Defects and Countermeasures are divided into:"murderers" not clear under the proposed changes,"murder, robbery, rape, kidnapping under non-standard and proposed changes "other serious violent crimes that endanger the safety of life" under the non-specific with the proposed changes,"ongoing" prescribed fuzzy with the proposed changes, the burden of proof of lack of liability rules and the proposed changes. |
