Research On The Rule Of The Necessity Of Defense Behavior

In recent years,with the emergence of the cases of Yu Huan’s intentional injury case,Yu Haiming’s justifiable defense case,and Zhao Yu’s righteous act,the issue of defense limit has aroused widespread concern from the whole society.In the field of traditional judicial practice,when the judicial workers determine whether the defense is over limit,they often attaches great importance to the equivalence of the damage results and ignores the determination of the necessity of the defense behavior.Through the judicial cases in recent years,it can be found that the judgment of whether the defense behavior is necessary is very important in the practical identification,and it even plays a decisive role in the identification of the nature of the case.However,there are few legislation and judicial interpretations related to the determination of the necessity of defense behavior,and there are no unified standards for the determination of the limit of defense in the theoretical circle,and there is little research on the specific determination rules of the necessity of defense behavior,they can not provide a unified and clear standard for the specific determination of the necessity of defense behavior in judicial practice.Therefore,in judicial practice,the attitude of judicial staff in the judgment of the necessity of defense is conservative.Many problems,such as different judgment standards,the judgment from the perspective of post engagement,and the neglect of the subjective knowledge of the defender,are exposed.In order to better identify the defense limit,it is necessary to strengthen the research on the necessity of defense behavior.Starting from the relationship between the necessity of defense behavior and the equivalence of defense results,this paper discusses its important position in the defense limit,analyzes the judicial situation and existing problems of the necessity of defense behavior in recent years,and then analyzes the rules to be followed in determining the necessity of defense behaviors based on the typical cases issued by the judicial organs in recent years.This paper is divided into six parts.The introduction part mainly discusses the selected topic’s background,the significance and approaches of the research and the theoretical research status at home and abroad of the necessity of defense behavior.Chapter one is an overview of the theoretical issues of the necessity of defense behavior,it introduces the meaning of thenecessity of defense behavior in this paper,clarifies the relationship between the necessity of defense behavior and the equivalence of the defence result,determines the decisive position of the necessity of defense behavior in the determination of defense limit,and discusses the theoretical basis of the necessity of defense behavior.Chapter two is about the the current situation of judicature of the necessity of defense behavior,through sorting out the relevant data related to the necessity of defense behavior in the court’s judgments and rulings through the judgment document network,this part summarize the current situation of the necessity of defense behavior in the judicial field of our country and analyze the irrationality and the reasons behind it.Chapter three is about the empirical case analysis of the necessity judgment of defense behavior.This part starts from the recent Tang Xue’s case,Tang Jiandong’s case and Liu Song’s case,combined with the handling opinions of judicial organs,analyzes the factors considered in the necessity judgment of defense behavior and the rules followed.Based on the above theoretical and empirical research,Chapter four draws the conclusion that the determination of the necessity of defense behavior should abide by the principle of the unity of subjective judgement and objective judgement,prior judgment and integrated evaluation.Then under the guidance of the above principles,the nature and urgency of illegal infringement,the intensity of illegal infringement,the necessity of defense time,the use of defense tools and the environment of defense should be considered to analyze the necessity of defense behavior in the judgment of specific cases.The conclusion summarizes the main content of this paper,especially the judgment principles and rules of the necessity of defense behavior,hopes to provide help to judge whether the defense behavior is too excessive in judicial practice and solve the problems existing in the judicial practice of our country.