Study On The Judicial Confirmation Of Excessive Defense

Self-defense is the instinct of all animals.Since ancient times,human beings have a sense of self-defense rooted in simple concepts,which shows that "you don’t have to succumb to injustice".With the continuous development of human society and the continuous improvement of people’s needs,legitimate defense has been established in due form,and relevant regulations have also emerged.Since the Criminal Law’s first formal establishment of the legitimate defense system in 1979,the revision and improvement of the Criminal Law in 1997,the guidance cases in recent years,typical cases of non-arrest and non-prosecution,and the issuance of the guidance opinions of the three departments on the legal application of the legitimate defense system,China’s legitimate defense system is increasingly adapted to the needs of society under the requirements of rationality.However,the recent occurrence of the "Liaocheng Yuhuan case","Laiyuan Anti-Killing Case",and "Kunshan Anti-Killing Case" has aroused heated discussions among the public and widespread concern in criminal law academics,showing that the legitimate defense system of China still exists defects and lags,so it is necessary to re-examine it’s current one.Taking the "Wang Lang intentional injury case" as a study case,this article finds that under the existing legal framework,the nature of defense,special defense,and excessive defense still cannot be identified with a unified and effective standard.Therefore,in judicial practice,the resulting problems often occur,such as the omission to determine excessive defense,ignorance of the subjective consideration of the defender in the the defense limits judgment,and the inability to unify the sentencing scale in similar cases.In view of this,this article first elaborates China’s relevant legislative and practical experience on the following controversies: the nature of defense,the identification of special defense and excessive defense,and both views of the prosecution and the defense are analyzed.Secondly,through the sorting and analysis of a large number of relevant judgments,the status quo of the application of the past defense system in our country has been investigated,and the manifestations and root causes of existing problems have been clarified.Finally,by comparing the similar foreign legislation and experience of excessive defense and drawing on the relevant mature theories and systems of foreign countries,the author offers her proposals from three aspects: the nature of defense,the criterion of defense limits,and the accurate application of the "Guiding Opinions".Based on this,the article is expected to contribute a modest force to the study of judicial identification of the excessive defense of China and promote the formation of an operable program which can better adapt to the legal system with Chinese chacteristics.It will still be the direction of the development and reform of China’s legitimate defense system.