Research On The Infringement Of Self Recruitment And The Right Of Self-defense

In the judicial practice of our country,the judge often does not recognize the right of guard against the infringer.However,there are many differences between the subject and the object in the situation of self-defense,so it is not reasonable to deny the right of self-defense of the actor.However,the academic research on the problem of self-employed aggression is often limited to the concept of "provocative defense",and all types of self-employed aggression are not fully analyzed.In view of this,this paper will study whether the self-employed infringer can enjoy a complete right of self-defense.The paper is divided into four parts:The first part is the denial of the right of self-defense in judicial practice.In judicial practice,the judge often denies the right of self-defense by the fact that the infringer does not have the defense intention and the infringement it is facing does not have the urgency.The main reasons for the above-mentioned practices are as follows: first,completely denying that the right of self-defense can meet the simple sense of justice of the public;second,out of the need of maintaining social stability;and finally,the influence of the Confucian legal tradition in China.However,this practice not only shows a tendency of subjective incrimination based on the subjective motivation of the perpetrator,but also the requirement of the urgency of the illegal infringement is not consistent with the provisions of the criminal law of China.Therefore,we should abandon the excessive moral requirements of self recruited infringers and pay more attention to the objective aspects of their behaviors.The second part is the academic debate on the right of self-defense.Since the concept of "provocative defense" can not cover all kinds of cases of self-defense in practice,self-defense should be defined as "the occasion where the perpetrator intentionally or negligently causes other people’s illegal infringement through a certain prior act and counterattacks the infringement" according to the need of discussion of self-defense.At the same time,in the relevant theories of self-defense right infringement,the theory of defense right maintenance ignores that self-defense behavior may have certain impact on the relative person;the theory of defense right limitation only classifies according to the subjective intention of the actor,and does not consider the objective behavior of the actor;the theory of defense right exclusion will make the legal interests of self-defense right infringer unable to be effectively protected.The third part is the proof of the right of self-defense of the infringer.No matter what kind of attitude and purpose they hold,the self-employed aggressor who causes others’ infringement through legal acts will not have any impact on their right of self-defense.First of all,its legal pre act will not make the actor’s legal interests worth protecting decline or the legal order maintenance effectiveness of the Defense Act weaken;secondly,the lack of defense purpose,the existence of the intention of fighting and the pre preparation tools and other reasons are not enough to deny the actor’s subjective existence of defense intention;thirdly,it is considered that the actor’s lack of urgency in the face of illegal infringement is even more unable to be punished Finally,it is the embodiment of the constitutional protection of civil liberties to affirm the legitimate right of self-defense of the infringers.The fourth part is the legitimate right of defense and its limits of the infringers.First,we should not restrict or deprive the right of self-defense of those who violate the law intentionally.The reason is that the actor’s behavior before breaking the law does not affect the relative person’s self-determination,so the actor’s legal interest protection has not declined and his defense behavior can still maintain the legal order.Secondly,for those who intentionally violate the law by themselves,because they can participate in the occurrence of illegal infringement,their right of defense should be limited,and they must follow the path of first retreat,protective defense and aggressive defense.