Study On Defense Limits Of China

The limit of defense is the key of justifiable defense,which determines whether the defender commits a crime.This paper is divided into five parts.The first part of this paper firstly analyzes the main problems about judging the defense limit in Chinese judicial practice.First,the phenomenon of consequentialism is serious.Once the result of serious injury or death of the unlawful infringer occurs,especially when the unlawful infringement is not enough to cause the death or serious injury of the defender,it is difficult to be recognized as justifiable defense.Second,the idea of "tool equivalence" is serious.Secondly,it summarizes the main reasons for the above problems in judicial practice of China.First,judicial practice only judges the defense limits from the objective factors in the latter perspective,but ignores the impact of the defender’s subjective mentality and the rapid change of risks.Second,there is no uniform understanding of the law concept and theories of defense limit as well as the justification of justifiable defense in academic circles and judicial practice.In view of the reasons of the problems in the judgment way,this paper clarifies the way for perfecting the judgment standard of defense limit through the analysis of three chapters.The second part of this paper analyzes the theories of justifications of justifiable defense in China,and concludes that the principles of personal protection and the maintenance of legal order generally approved by rational people are the basis of justifications of defense in China.The third part of this paper sketches out the concepts and the theories of Chinese defense limit,and analyzes and determines the content of each component element of defense limit,including the relationship between the necessary limit and the major damage,the judgment standard of the necessary limit,the understanding of the major damage.The fourth part of this paper introduces and analyzes the theories of foreign defense limit,including Germany,Japan and the United States,in order to give some enlightenment to China.After determining the justifiable defense justification theory and theories of Chinese defense limit,the last part of this paper puts forward some suggestions for the judgment criteria of Chinese defense limit to change the phenomenon of "consequentialism" and the idea of "instrumental equivalence",including: external criticism and inspiration,principles to be followed by the judgment criteria,time and angle of judgment,and the specific factors to be considered.