The Study Of Application Relationship Between Justifiable Defense And Public Remedy

The application relationship between the exercise of justifiable defense right and seeking for public remedy has always been an ambiguous and diverging issue in criminal law and theoretical research,which has resulted in doubt of the contradiction and miscarriage of justice to the judgements in judicial practice in relation to such issues.Despite no explicit opinion of claiming that public remedy shall take precedence over justifiable defense existing in the provisions and theory of criminal law,whereas judicial authorities guided by the subconscious concept of preference for public remedy are accustomed to refute justifiable defense by reason of not seeking for public remedy when there is still the possibility of obtaining public remedy,which shall be deemed as unfair judgements of improperly restricting justifiable defense right.This article shall illustrate the nature and performance of the contradictory relationship between justifiable defense and public remedy,explore the internal cause and its theoretical defect of the formation of subconscious concept of preference for public remedy,discuss and summarize the eradication of subconscious concept of preference for public remedy and the establishment of legitimate application relationship between justifiable defense and public remedy in depth.This article is divided into four chapters:The first chapter: This chapter illustrates the process and trend of the historical development of justifiable defense,reveal the reason and nature of the contradictory relationship between justifiable defense and public remedy.Discusses the specific performance of the contradictory relationship between justifiable defense and public remedy in three aspects in depth,firstly in terms of the theories relating to justifiable defense in criminal law field,discuss obscure statement affirming that public remedy shall have priority of the theories focusing on defense legitimacy basis;secondly in terms of extraterritorial criminal law,discuss typical performance of preference for public remedy in the law of Japan;thirdly in terms of such three levels as the provisions of criminal law of PRC,the theoretical opinion of criminal law scholars of PRC and the typical cases in judicial practice of PRC,discuss the specific performance of contradictory relationship between justifiable defense and public remedy in PRC.The second chapter: This chapter analyzes the internal reasons of resulting in the subconscious concept of preference for public remedy in PRC.Analyze such internal reasons from the perspective of traditional law theory,criminal policy position,value selection between liberty and order and the understanding of the urgency of unlawful infringement respectively.Discuss the theoretical defects of such internal reasons and the problem of inevitable influence on the impartiality of judicial judgement under the guidance of such subconscious concept in depth.The third chapter: This chapter analyzes the theoretical approach to the eradication of subconscious concept improperly restricting the justifiable defense right.In the first place,distinguish justifiable defense from traditional private remedy in the narrow sense from the perspective of the nature of justifiable defense and eradicate the stereotype of affirming the advantage of public remedy and restricting justifiable defense right based on the definition of justifiable defense by traditional private remedy in narrow sense.Meanwhile,in terms of the understanding of the urgency of unlawful infringement in justifiable defense theory,eradicate the misunderstanding of the urgency of unlawful infringement under the influence of the concept of preference for public remedy,perceive the specific intension of immediate actuality and severe harmfulness correctly and judge the urgency of unlawful infringement materially in the event of the presence of public remedy.The fourth chapter: This chapter discusses the accurate settlement of the contradictory problem between justifiable defense and public remedy and the reconstruction of theoretical system of the application relationship between justifiable defense and public remedy.Firstly,adjust the fundamental foothold of the application relationship between justifiable defense and public remedy in respect of law standard perception and criminal policy,persist in the proper guidance of rights-based theory and transform to the pattern of criminal policy based on both national and social power.And then,weigh the value and significance between the nature of rights harmed by unlawful infringement and national monopoly legal order and make specific judgements in relation to the application relationship between justifiable defense and public remedy.Finally,use the purport of a few legitimate judgements relating to such cases in judicial practice as a proof and stick to the standpoint that the exhaustion of public remedy and other remedies shall not be the premise of the exercise of justifiable defense right.