A Comparative Study On The Limit Of Self-defense Between Chinese And German Criminal Law

Although self-defense is widely admitted in modern criminal law,its limit has always been a controversy.One case in China,in which the defendant used deadly force in order to prevent the loss of property,led to the social and academic discussion of the limits of property defense.Similar questions were also raised in Germany.Now the German law has abundant theoretical and practical experience on this issue which might be introduced to China.This paper first articulates the fundamental principles in self-defense,compares the philosophical nature of self-defense,its position in the whole theoretical system of crime and the legal policy concerning the property defense in Germany and China to find out that self-defense protects both private right and the order of law.Moreover,both countries adopt a compromised legal policy for self-defense,which allows proper limitations on the defense of property.The prerequisites of self-defense in China and Germany are similar.Prerequisites contain subjective and objective parts.Objective prerequisites consist of defense circumstances and defense actions,the former of which focus on the question of "if"any kind of self-defense is allowed while the latter one pays attention to the question of "how".After the analysis of the general principles above,the paper further explores the limit of self-defense in Chinese and German criminal law.Influenced by EHRC,German domestic law seeks a compromised ground:it prevents the abuse of lethal force with-out over-limit the right of defense.Therefore,German law would first take principle of necessity to make sure that "the right need not yield to the wrong";then it refers to the principle of proportionality to limit the right of defense,in order to provide the most comprehensive protection of lives.In China,the so-called "special right of defense " seems to break the limit literally,while in fact,it is still constrained by the"necessary limitation".Like in Germany,the general understanding of necessary limitation in China also consists of the rule of necessity and ratio.However,since the current theory doesn't clarify the logic between these two rules and the the application of the principle of proportionality during the assessment of legal interests lacks,though the Chinese law has similar structure as German,it has defects when dealing with detailed problems in practice.As the result,an introduction of related German rules and experience to Chinese law is both practical and beneficial.Based upon the solution of concrete case and the general principle of the institution this the paper comes to a conclusion in comparative law.In order to fully realize the systematic value of self-defense,there should be no absolute prohibition or allowance of the use of deadly force in the defense of property.A complete consideration of the defense circumstances and the conflicts of interests between the attacker and defender must take place.The requirement of a necessary and proportional act of defense can reasonably prevent the abuse of the right.In this process,the clear logic of the legal system and mythology of building up case-groups in German law provides the devel-oping legal theory in Chinese criminal law with a role model.