On Unlawful Infringement In Justifiable Defense

Shen Deyong,former vice president of the Supreme People’s Court,pointed out that the 1997 Criminal Law made major amendments to the legitimate defense system.Although the amendment of the criminal law has played a certain role in the proper handling of legitimate defense cases,from the perspective of judicial practice,The application of justifiable defense still tends to be conservative,and there are still doubts surrounding the scope of application of justifiable defense and the determination of the limit of defense.There is a phenomenon in judicial practice that the justifiable defense act is deemed to be unduly defensive or intentional crime.According to China ’s criminal law on the justifiable defense system,"in order to protect the country,the public interest,the person,property and other rights of others or other rights from ongoing unlawful violations,the act of suppressing unlawful violations has caused unlawful violations.The damage is justifiable defense." It can be seen that China defines the concept of justifiable defense by defining its constituent conditions.Tong said that the establishment of legitimate defense requires five conditions.First,there must be unlawful violations;second,unlawful violations are in progress;third,the perpetrator has a subjective defense intention;fourth,the defense must be carried out against the unlawful violation of himself;fifth,the defense must not exceed the necessary limit Cause undue damage.Illegal infringement,as the cause of the establishment of justifiable defense,is the premise basis for determining the establishment of justifiable defense,and it is the first element of judgment in a justifiable defense case.The existence of unlawful infringement determines the establishment of justifiable defense in a certain sense.If illegal violations do not exist,it is not necessary to continue to judge whether a proper defense can be established.Only on the premise of confirming the illegal violations,it is necessary to judge the defense time and defense limits.However,regarding what constitutes "illegal infringement",China’s criminal legislation does not make clear provisions or relevant judicial interpretations.Therefore,there is no uniform standard in judicial practice in the process of determining illegal infringement,which has caused confusion in practice.In the first part of the article,the relationship between unlawful infringement and legitimate defense is first explained.Unlawful infringement is one of the basis of the justification of legitimate defense.Illegal infringement is the cause of legitimate defence.The determination of unlawful infringement will directly affect the establishment of legitimate defence.Secondly,raise the question,because the legal and judicial interpretations are relatively vague on the provisions of illegal infringement,and there are many theoretical disputes about illegal infringement.It is more difficult when the current judicial practice finds illegal infringement,and it is easy to misjudge the behavior of legitimate defense as defense.Extortion or even intentional crime.In the second part of the article,the first section first makes a de facto determination of the violation,and discusses the evaluation criteria for determining whether the fact of the illegal violation exists.The subjective standard is that if the defender believes that the illegal violation exists based on his subjective reasonable belief,In fact,it does not exist.In this case,it can also be regarded as illegal infringement and the legitimate defense of it;objective standards believe that the illegal infringement that is the cause and condition of legitimate defense should be the actual actual infringement.If the defender mistakenly It is believed that there is a fact of infringement to defend,but in fact there is no fact of illegal infringement,at this time the perpetrator constitutes an imaginary defense.The second section identifies the value of the "illegal" infringement.Explore the criteria for determining the wrongfulness of illegal violations,including subjective wrongfulness theory and objective wrongfulness theory,provide judgment standards for the practice of identifying attacks by persons without criminal responsibility,and whether negligent crimes can be determined as illegal violations,and determine the illegality determination On the basis of the standard,the violations of persons without criminal responsibility are analyzed.In the third section,regarding the scope of illegal infringement,through the comparative analysis of the academic doctrine of criminal behavior,the theory of unrestricted criminal violations,the theory of restricted criminal violations,etc.,the author’s reasons for supporting the theory of criminal violations are expounded.The third part of the article discusses the "urgency" of illegal infringement.Academics have questioned the necessity of the "urgency" element.However,China’s criminal law generally believes that illegal infringement in the sense of legitimate defense requires urgent danger to legal benefits.However,due to the lack of clarity and unity of legislative norms and theoretical interpretations,how to judge whether the illegal violations in individual cases meet the urgency of legitimate defense is a major challenge facing judicial practice.In this section,the determination of "urgency" will be proposed standard.The fourth part of the article,through the introduction of cases,points out the problems exposed by the judicial department in the process of determining unlawful infringement,and proposes that legitimate minor and non-violent infringement can be properly defended,and the infringement must not be minor or contain no violent factors.That is,it denies the behavioral nature that can be the cause of legitimate defense.