Research On Time Elements Of Legitimate Defense

As a kind of emergency right,the essence of the legitimate defense is to stop illegal infringement and protect legitimate right and interest.In order to ensure that it can play its due role,Article 20 of China’s Criminal Law stipulates the conditions for the establishment of legitimate defense,including the conditions of cause,time,subjectivity,object and limit.Compared with other conditions,the time condition is less studied and analyzed.According to the provisions of criminal law,the time element of legitimate defense is "illegal infringement is going on",so when and when the illegal infringement begins and ends,the theoretical circle has many different opinions on this.In practice,because of the inconsistency,there are many different judgments in the same case,which will not only affect the exercise of citizens’ legitimate defense right,but also run counter to the original intention of legislator to set up legitimate defense clauses.It can be seen that it is the key to study the legitimate defense system to define the judgment standard of defense time in practice as soon as possible.This article starts from the following five chapters:Chapter one:introduction.This paper mainly introduces the background,research purpose,literature review,research ideas and research methods.The background of the topic selection leads to the difficulties of the current requirements of justifiable defense in the process of judicial application,while the literature review is a comparative analysis of the domestic and foreign views,and makes the theoretical foundation for the follow-up research.The second chapter:the dilemma of the time requirement of legitimate defense in practice.Through the introduction of "Yu Huan intentional injury case" and "Hebei Laiyuan anti-kill case" two hot cases,the reasons behind the focus of the controversy are analyzed,mainly including the long-term misunderstanding of the judicial organs,ignoring the actual situation of defenders and the rigid identification of defense time.Chapter three:the beginning time of defense.This paper mainly combs the mainstream views of the academic circles on the starting time of defense in China,and comments on them,and draws its own views:first,we should unify the criteria of urgency judgment,and secondly,we should insist on the judgment of behavior.Then combined with specific cases to explain their views.Chapter four:the end time of defense.This paper mainly combs the mainstream views of the domestic academic circles on the end time of defense in China,and comments on them,and draws its own views:first,we should follow the theory of legal interest infringement threat relief,and then we should take the defense human standard as the judgment position.Then combined with specific cases to explain their support.The fifth chapter:this paper discusses the judgment of justifiable defense time requirements under special circumstances.For persistent infringement behavior,avoid separating the causes and consequences and make overall evaluation,for foreseeable defense behavior,there should be appropriately increased restrictions,for affray behavior,some behaviors called defense should be distinguished,and there is also room for urgency in specific circumstances.