| In recent years,due to several cases of justifiable defense that have a greater impact on society,many people have begun to re-examine the limits of justifiable defense.This article summarizes the judicial practice cases in recent years,and divides it into three stages in terms of time and representative cases with a greater impact on society: the first stage is the period of amendment of the Criminal Code from 1979 to 1997,and the "Li Boping case" in 1981 and the "Sun Mingliang Intentional Injury Case" in 1984 were the main objects of analysis;the second stage was the period of economic and legal social development from 1997 to 2017,of which the "Deng Yujiao Case" that occurred in 2009 and the "Yu Huan case" which occurred in 2016 are the main research object;the third stage is the period of flourishing economy and legal society from 2017 to 2020,in which the Supreme People’s Procuratorate first affirmed the case No.45 "Chen X justifiable defense case" and the Case No.47 of the "Yu Haiming Case"(Kunshan Longge Case)and the twelfth batch of guiding cases included in the Supreme People’s Procuratorate were used in the "Yu XX Intentional Injury Case" that occurred in September 2018 "Etc.are the main objects of analysis.This article finds that since the case of “Yu Huan” in 2016,the "theoretical community" and the "judicial practice community" began to have obvious differences of opinion.Theorists hope to relax the limits of justifiable defense,so that people can actively fight against illegal violations and exercise their justifiable defense rights;but the practice still believes that if the result is excessively limited,it should be biased to be considered as overdefense,without consider all the objective conditions of the defender and whether there are other alternative effective defense methods.Therefore,even if the defender is faced with the only effective defense method,he may still be deemed to be over-defended.Taking the Kunshan "Yu Haiming" case in 2018 as a watershed,judicial practice(in the form of judgment,revocation or not file the case)compared to before,began to establish a lots of justifiable defense cases.However,this article finds that there are only two positions on the traditional theory of defense limits in theory,which are "necessary theory" and "basically equivalent theory",while the "appropriate theory"(also known as eclectic theory)supported by many scholars in the past The position is the same as that of "basically equivalent theory",although there have been relevant researches in the theoretical doctrine in which the principle of proportionality is applied to the application of criminal law,it has not yet standardized and concretized the limits of legitimate defense.In order to enable the public to know the boundary between crime and non-crime when exercising the right of defense,and to control the degree of self-defense behavior,they need to rely on stable judicial judgments,and their standards and systems need theoretical support,so that they are fair and not contrary to deviate from the purpose of legislation,the standard and judgment process will be "formulated" on the basis of theory.Therefore,this article introduces the principle of proportionality as the test standard and model of defense limit,and deconstructs the current law,adopts the dichotomy model,so that the behavioral limit condition and the result limit condition have an independent and intrinsic logic of the test sequence,and inquires about the essence of proper defense.The defender is in an advantageous position,and then through a comparative study of the two sides of the strait,combined with a test model of the nature of the continental law system,based on the similarity of the law,reason,and sentiment of the two sides of the strait,a proportional principle test model with inherent limitations is derived and combined cases are used for argumentation and testing,and hope to provide a new compromise solution to achieve a testing model that combines theoretical systems and judicial practice. |
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