On Justifiable Defense Against Continuous Trespass

Based on whether illegal trespass has continuity in time,justifiable defense can be divided into two classes: those against continuous trespass and those against discontinuous trespass.Compared with the latter,the former is more controversial.The tendency of consequentialism in the judgement of defense against continuous trespass has greatly reduced the space for the establishment of justifiable defense and rendered the justifiable defense provisions a "zombie clause." By defining the concept of continuous trespass and displaying some specific cases,this dissertation analyzes the special characteristics of defense prerequisite,defense time and defense limit,and the scope of special justifiable defense in continuous trespass.By clarifying the specific criteria of the establishment of justifiable defense in the case of continuous trespass,the criminal resistance function of the justifiable defense provisions can be activated.The dissertation mainly includes the following four sections:Section 1 gives continuous trespass a definition and divide it into two classes,those with temporally intermittent trespass and those with temporally continuous trespass,each of which is explained in detail.Section 2 discusses the relationship between continuous trespass and ordinary justifiable defense and explores the specific criteria to judge counterattack against continuous trespass as ordinary justifiable defense.The establishing elements of ordinary justifiable defense in continuous trespass are detailed from three viewpoints: defense prerequisite,defense time and defense limit.Section 3 discusses the relationship between continuous trespass and special justifiable defense.Special justifiable defense exists in murdering,kidnapping and other violent crimes seriously endangering personal safety.Main factors involved in judging continuous trespass as such violent crimes are studied.If continuous trespass is judged as violent crimes,special justifiable defense will be possible.Section 4 provides some suggestions to improve judgements of justifiable defense in continuous trespass.Four judicial or legislative suggestions are provided: first,reasonably conclude whether illegal trespass is in progress;second,correct the shortcomings of consequentialism in legal practice;third,related law provisions should be improved;fourth,let typical cases play guiding role.Improving judgements of justifiable defense under special occasions would uphold social justice.