Research On The Standard Of Identification Of Excessive Defense

Justifiable defense is a right granted to citizens by criminal law.The article of excessive defense accompanying justifiable defense is not ideal in practice.The occurrence of "Yu Huan case" and "Yu Haiming case" aroused the academic research on the justifiable defense system(including excessive defense).Judging from the application of the law in the two cases,especially the judgment result of "Yu Huan case" in the second instance(life imprisonment for intentional injury in the first instance,and five years' imprisonment in the second instance),there are differences in the recognition standards of excessive defense in practice.The accurate determination of whether the defendant's act constitutes justifiable defense or excessive defense not only concerns the immediate interests of the defendant,but also is the necessary requirement to achieve judicial justice and establish judicial authority.Therefore,it is of great theoretical significance and practical value to carry out the research on the criterion for the identification of defense over appropriateness.There are two theories in the academic circle about the criterion of excessive defense: the equivalence of legal interest and the necessity.However,neither of the two theories can provide better guidance for judicial practice.In practice,there are many difficulties in the identification of excessive defense,such as only damage result theory,wrong understanding of illegal infringement,and special defense authentication difficulty.The reasons for the above dilemma are various,including the ways of determining behavior after the event,the improper understanding of the normative meaning of "necessary limit" by judicial personnel,and the excessive pursuit of judicial social effect.However,the fundamental reason is that judicial practice has not reached a consensus on the identification standard of excessive defense.In order to standardize the standards for the identification of excessive defense practice and achieve the goal of judicial justice.It is advisable to standardize the judicial practice of excessive defense from the following aspects.First,science measures legal interest.Excessive conduct is a balance of legal interest.However,the balance of legal interest should not only be considered from the perspective of damage results,but also take into account the comparison of strong and weak forces,the choice of means and other factors,to make a situational judgment.Secondly is the overall evaluation of unlawful infringement.If the offender does not explicitly stop or give up the infringement,the defensive act of the defender is justified.Some scholars should oppose the idea of segmenting the process of victimization and insist on the holistic evaluation of behavior.Finally,strengthen the practical guidance function of guiding cases.In practice,the construction of defense case database should be strengthened,and the function of judicial guidance should be strengthened for typical cases.