The Dilemma And Outlet Of Judicial Confirmation Of Excessive Defense

Excessive defense occupies an extremely important position in the legitimate defense system.China's current "Criminal Law" has made significant changes in the defense system compared with the 1979 "Criminal Law",and the criminal law theorists have never stopped issues related to excessive defense.Exploration and discussion.In recent years,many cases of over-defense have appeared in judicial practice,from the publicly familiar "Deng Yujiao Case" to "Yu Huan Humiliation Mother Murder Case" to "Zhao Yong Seeing the Righteous Action",which has set off a strong social In the public opinion,issues related to over-defense have become a hot issue in the eyes of the public,and how to determine over-defense in judicial practice has also become the focus of the judiciary.This article is based on China's current Criminal Law's legislative provisions on over-defense,and was searched through the Chinese Judgment Document Network,Jufa Cases and other websites for the keywords of "over-defense" and "judgement of the court" from 2016 to 2020.Relevant cases were analyzed and sorted by statistical methods based on proportional sampling,and then found that excessive defense has many difficulties in judicial practice.One is that there is a dispute between criminal law theory and judicial practice for the determination of excessive defense.So that when the court judges deal with related cases,they cannot use a unified theory to guide the determination in judicial practice;the second is that there is a deviation in the understanding of the legal provisions of excessive defense.It is precisely because of excessive defense that has caused confusion in the operation of the judiciary,and at the same time,the results of the referee under the theoretical controversy are difficult to persuade the public,thus causing difficulties for judicial practice.Faced with these dilemmas,the author combines the current judicial practice and theoretical research to solve these dilemmas from the following aspects: One is to analyze the relationship between the pre-and post-conditions in accordance with the legal regulations of excessive defense.The relationship between the conditions is clear,and the judgment sequence and judgment criteria are clarified.The second is to strictly distinguish and define the subjective crime form and the crime intention of excessive defense.The specific factors of defense awareness and defense awareness are also made.Detailed explanation and analysis;Third,we explored the types of undue defense punishment,and proposed two types of blameless defense deficiencies,namely accident-type and blame-based defense deficiencies.The provisions of "should be reduced and exempted from punishment" no longer make it a decoration.