Research On Civil Justifiable Defense System

China’s civil due defense system has not been fully studied and paid attention to in the civil law academic circles.The civil law norms lack the systematic construction of civil legitimate defense,so that it is difficult to obtain objective and fair laws in civil legitimate defense cases in judicial practice.Evaluation,this led to the majority of scholars in the field issuing the assertion that "legitimate defense rules have become a zombie clause".Usually,the settlement of civil disputes focuses on the division of responsibility for the damage.Therefore,when the referee solves such cases of civil justifiable defense,the referee often over-considers the results of the defense behavior,adopts the "only results" judgment thinking,and will civilize The application of the legitimate defense system directly leads to the measurement of damages,thus neglecting the rights protection of civil legitimate defense.In fact,judging from the legislative attitude of China’s civil law norms for civil legitimate defense,it is clear that it is affirming the legitimacy and rights relief of civil legitimate defense,but the civil legitimate defense clause is set in the eighth chapter of"Civil Liability" of the General Principles of Civil Law.In the third chapter of the Tort Liability Law,"No liability and responsibility reduction",this has formed such a value orientation at the legislative level:the civil due defense system pays more attention to the measurement of the amount of damages,and the defense behavior is justified.It is exempt from compensation,and it provides reasonable compensation for the case of defending the case.If it is not a legitimate defense act,it will be mainly or fully compensated.Therefore,the legislative style of such a civil justifiable defense system in our country will undoubtedly be the "only result" in judicial practice.The rules of the referee have had a big impact.What needs to be clarified is that "legitimate defense rules become zombie clauses",which is not only caused by the disconnection of the civil due defense system at the judicial level and the legislative level.On the contrary,judges are "judging according to law" when trying to properly defend such cases.The reason why some scholars believe that civil justifiable defense rules do not play their due value in judicial practice,because civil legitimate defense does not highlight the rights-based thinking of "protection and realization of civil rights" at the institutional level,leading to civil legitimate defense cases in the past.Under the influence of the trial thinking of "compensatory measurement of damage results",it is difficult to obtain a positive evaluation of the law.Therefore,the full manifestation of the legal value of the civil due defense system requires a variety of efforts,from the legislative level,the judicial level,theoretical research,etc.,rather than a single source of systematic correction to find the reasons.The perfection and development of the civil due defense system is also a process of learning and learning,that is,by examining the differences between the civil law and the legitimate defense behaviors in other departmental laws,especially considering the impact of criminal legitimate defense on civil legitimate defense,and trace the history of defense rights.Origin,explore the essential attributes of defense rights,and examine the value of civil legitimate defense rights from the perspective of civil rights protection.In addition,the extraterritorial investigation of the civil due defense system has great reference significance for the systematic construction of the civil due defense system in the future civil code.The perfection and development of China’s civil due defense system should emphasize the "rights-based" thinking,rather than paying too much attention to the compensatory nature of the damage results.From the perspective of the protection and realization of civil rights at the institutional level,the detailed type design of civil legitimate defense rights provides a strong legal basis for civil subjects to protect their legitimate rights and interests.At present,in the case that China’s civil due defense system is still not perfect,the Supreme Judiciary should formulate a unified rules for the referee and issue typical guidance cases in a timely manner to prevent the situation of "same judgments in different cases".In addition,the referee needs to avoid "only The subjective trial rules of the "results" while perfecting the judgment of the legality judgment of civil legitimate defense behavior,said that the rational expression,improve the persuasiveness and authority of the judicial referee.In theoretical research,it pays attention to the research and discussion on the value of civil legitimate defense private relief.Starting from the existing civil law norms and principles,from the perspective of the protection and realization of civil rights,the real meaning behind the civil legitimate defense articles and theories is explored.Value,for the further improvement of the civil due defense provisions and the provision of uniform definitions for judicial practice,in order to ensure that civil justice to defend such cases with the same judgment to maintain judicial unity,improve the authority and acceptability of judicial decisions.