Research On The Conditions Of Establishing Special Defense In China

In recent years,there have been many hot cases with the keywords of “justifiable defense,excessive defense,and special defense”.When the “Yu Huan case” in Liaocheng City in Shandong Province was still hotly debated,Kunshan which attracted much public opinion City’s “Yu Haiming Case”.The controversy over “crime and non-crime” among the people has aroused the attention of scholars in the criminal law circles on the basic theoretical issues of special defense.After summarizing the focus of these concerns,it can be found that they point to the same problem,that is the problem of determining the conditions for the establishment of special defenses.Since the establishment of the special defense clause in the criminal law,the academic circles of criminal law have never stopped discussing it.Among them,the title of special defense,the relationship between special defense and general legitimate defense,and the conditions required for the establishment of special defense have been different among scholars Insights.Based on the analysis of various viewpoints,the author has obtained a more correct title for special defense,clarified the relationship between special defense and general legitimate defense,and combined with the legislative intent,put forward four conditions for the establishment of special defense: cause conditions,subjectivity conditions,time conditions,and object conditions.In the causal conditions,the exact meaning of “assault” in the meaning of China’s criminal law is different from the vague definition in daily life;the objective review of“killing,robbery,rape,abduction” in the criminal law should mean that it can refer to specific crimes.,Can also refer to the above forms of criminal means;the definition of “other violent crimes that seriously endanger the person’s security” is to interpret “other serious threats to the person’s security” and “violent crimes” respectively.In subjective conditions,defense awareness is that the defender recognizes that certain acts of violence are ongoing and endangers the safety of life;defense will is the purpose of the defense based on the correct defense awareness and is expressed through externalized defense behavior.In the time conditions,the start and end of the defense time should be judged separately.The start of the defense time is the flexible use of the “start” and the criterion of “serious endangerment of human life” as the judgment criterion;the end of the defense time is the danger caused by violence.And exclusion of urgency.In the object conditions,the defense object should be directed at the perpetrator of violence.In joint crime,the object of defense is different between simple joint crime and complex joint crime.The identification of defense objects in simple accomplices is generally based on the perpetrators of specific acts of violence,while in complex accomplices,whether the offender has special defense or not depends on the division of labor of the offender.In general,people with no criminal responsibility should be cautious when implementing special defense,and there is generally no problem of special defense in mutual assault.The above analysis clarifies the boundaries of the terms in Article 20,paragraph 3 of the Criminal Law,and has a certain grasp on the central issue of this article.On the basis of correctly understanding the conditions for the establishment of special defense,the author explores the problems in the identification of special defense in China’s judicial practice at the end of the article,and puts forward relevant suggestions for different problems.