| The legitimate defense system allows private individuals to make the benefits of legal protection not infringed by stopping "violence with violence",its nature is the embodiment of the constitutional rights granted to citizens in criminal law.The exercise of rights is bordered,and the boundary of defense rights is the limit of defense.An accurate understanding and grasp of the limits of defense can prevent the defense rights from being abused and the defenders to be jailed for exercising their defense rights.Especially in the case of continuous infringement,the risk faced by defenders is in a state of "accumulated rise" and there is a great disparity in the strength of both sides.Therefore,defenders often use more extreme defense methods to defend and result in serious deaths.Regrettably,the practice community does not have an accurate understanding of the limits of defense.From the results,the defense limits are too tightly controlled,resulting in a large number of cases of persistent violations being identified as excessive defense.Through in-depth theoretical analysis of the methods adopted by the practice community,it is found that the reason is that the practice community is deeply affected by the "legal benefit measurement theory".The "legal benefit measurement theory" can not provide sufficient reasons for justification and ignores the nature of legitimate defense rights,which provides theoretical support for the theory of "consequentialism".Consequentialism constructs the defense limit of "causing significant damage obviously beyond the necessary limit" as a whole understanding,so that the behavior limit can be eliminated in the judgment of the result.The judgment of defense limit only pays attention to the measurement of the result and takes the result of causing serious injury and death as the fixed standard of defense limit,ignoring the special situation of the defender,so that the defense behavior can not be reasonably evaluated in the persistent infringement.To advocate different theoretical viewpoints on the basis of justification will inevitably have a profound impact on the interpretation of the conditions for the establishment of justifiable defense and the choice of the judgment method of the limits of defense.To this end,it is necessary to choose appropriate justification theory based on the particularity of persistent infringement.By combing the existing justifications according to relevant theories,the "dualism" consisting of the principle of personal preservation and the principle of legal confirmation is the most reasonable.From the entity level,it provides a substantial basis for legitimization from the two aspects of personal preservation and legal confirmation,so that the nature of legitimate defense rights can be established.At the methodological level,it provides a theoretical basis for the "behavior center" theory,and provides a possibility situational judgment of "mindto-heart" mode.From the standpoint of this theory,the specific judgment path of defense limit is centered on "behavior" to judge the validity of defense behavior and "benefit measurement" to judge "significant damage",which not only makes the two elements of behavior limit and result limit judge independently,but also takes into account the behavior and result in the judgment of defense limit.An in-depth comparison of the two theories reveals that the "consequentialism" based on the "theory of legal interest measurement" evaluates the defense behavior from the fact that the defender should not cause undue damage to the unlawful infringer.It is a "criminal" judgment path.The "behavior-centered theory" based on "dualism" is a judgment path of "guilty" which takes the defender’s right to act effectively and without risk as its origin.Therefore,the "dualism" is used as a justification basis,and it is conducive to making accurate and reasonable judgments on the defense limits of persistent infringements by considering the special circumstances in which the defenders are located. |
