Empirical Research On Excessive Defense

From the Deng Yujiao case in 2009 to the Yu huan case in 2016 to a series of anti-murder cases in recent years,the opinions of judicial practice departments,criminal law theorists and the public on whether the act of defending a person is justifiable defense have always been divided.The reason lies in the fact that the standard of our country has not been unified and clear.Although the system of excessive defense has been stipulated in article 20(2)of the current criminal code of our country,the standard of defense limit and the definition of damage have not been further clarified,and no corresponding judicial interpretation has been issued.Although there was one case of excessive defense guidance in the 12th batch of guidance cases issued by the supreme people’s procuratorate in December 2018,it could not effectively solve the problem of different standards of excessive defense limits.Therefore,it is urgent to define the limit of excessive defense.Based on the current judicial status quo of excessive defense,and for the referee charge distribution of excessive defense case,defensive behavior of defense consequences,both the number of contrast,the tool use,environmental defense,etc to the empirical analysis of 183 cases of excessive defense case,from the judicial practice case to find the judicial organs for standard of excessive defense law,there is no denying that the judicial practice,for the limits of excessive defense to be rigid,too much emphasis on damage results and minor injuries cognizance major damage,for "clearly more than necessary to limit" and "significant harm"reason,the referee.It is mainly due to the overly general provisions of the defense law,the tendency of "consequentialism only" in the derivation of results and the excessive consideration of extra-case factors by judges.Based on the investigation to the countries outside the defense limit theory,the civil law countries limit people take defensive behavior for defense judgment is mainly for the need for defense when people take defensive actions need to limit and quite limit,defensive behavior only in both necessity and meet the requirements of the limit of justifiable defense;The Anglo-American legal system countries are different from this,but the object of protection is divided into defense itself,defense others,defense property and defense residence.In view of the problems in judicial practice in our country,combined with the experience of extraterritorial defense limit,this paper proposes rectifying ways for the application of our country’s excessive defense system.Further refine the judgment criterion that "obviously exceeds the necessary limit" and refine the factors to be considered;It is clear that "major damage" should not include the damage consequence that causes minor injury to the unlawful infringer,and property major damage should also be included.When judging the defense,the limit of defense behavior and the limit of the result should be equal and have at the same time,otherwise it should be considered to establish justifiable defense.