Justifiable Defence Judicial Cognizance Of The Troubles And A Way Out

As for the system of justifiable defense,the academic circle has been in constant dispute and no consensus has been reached.At the same time,judicial personnel have always maintained a cautious attitude towards the application of justifiable defense in judicial practice,so that the application of justifiable defense content stipulated in article 20 of the criminal law is very rare,which greatly limits the functional value endowed by the law to it.In 1997,the criminal law made major amendments to justifiable defense,the purpose is to broaden the standard of justifiable defense application,and maintain judicial justice.However,so far,the judicial status quo has not been fundamentally reversed,mainly because in the judicial practice process,there are still some difficulties in the identification of justifiable defense.Due to the law on the regulation of self-defense has certain concept fuzziness,combined with the judicial staff in the judicial practice there are some mistakes in cognition,and social public opinion derailment and the lack of the guidance of scientific appraisal system and rich case,cause in the judicial practice,the cognizance of justifiable defense is difficult,even affect the legitimate rights and interests of Chinese nationals and judicial credibility.The first chapter of this paper starts from the historical reform of justifiable defense,studies the different judicial provisions of justifiable defense system from ancient times to the present,and from the provisions of the past dynasties,we can see the legislative purpose and significance of the legislators in establishing justifiable defense system.After summarizing the historical changes of justifiable defense,this paper introduces the status quo of judicial identification of justifiable defense,mainly including the few cases of identification of justifiable defense and the cognitive contradiction between the judgment of justifiable defense cases and public opinion.Through studying the present situation of judicial cognizance of justifiable defense,this paper summarizes the content of chapter two,namely the three dilemmas of judicial cognizance of justifiable defense.The first dilemma is that judging the nature and limit of defense is results-oriented,the second dilemma is that the definition standard of special defense is vague,and the third dilemma is whether the illegal infringement is being judged incorrectly.This paper introduces the three dilemmas of judicial identification of justifiable defense,and discusses and argues with typical cases in judicial practice respectively,striving for the organization and clarity of the article.In the third chapter,based on the above three dilemmas judicial cognizance of justifiable defense,the defense limit,special defense system and illegal infringement judgment standard for Chinese and foreign contrast,respectively,in the process of comparing summarizes advantages and disadvantages of both sides,makes every effort to provide a reference for our country judicial practice for the reference to the outside.The fourth chapter,aiming at the dilemma of judicial determination of justifiable defense,discusses the way out.Firstly,the connotation of justifiable defense should be clarified,especially the connotation of "assault","unlawful infringement" and "ongoing".Secondly,it is necessary to improve the judicial system,perfect the judicial interpretation and guidance cases,make up for the deficiency of the evaluation mechanism of judicial staff,improve the scientificity of the evaluation mechanism of judicial staff,accept social supervision,and properly integrate the concept of the public in the process of judicial practice.