Study On The Judicial Determination Of Defense Limit

The determination of the limit of justifiable defense has always been a hot issue in the field of criminal law.There are many opinions in the field of judicial practice and academic theory about what kind of determination standard the limit of defense should adopt.In judicial practice,the cases are complicated,and different ways of determination of defense limits often come to different conclusions.In order to give full play to the function of the system of justifiable defense,it is necessary to establish the standard idea of determination of defense limit.First of all,this paper starts with the provisions and norms of justifiable defense in the criminal law of our country,and makes clear the specific meaning of the concept of defense limit."Clearly more than necessary to limit" and "major damage",the relationship between this article monism and dualism of these two theories,this paper compares and analyzes the "dualism" more reasonable conclusion,think in the process of the defense limit that defensive behavior and damage result shall be as two separate elements of the evaluation.Secondly,based on analyzing the current situation of judicial practice,this paper think that at present our country judicial practice in defense limit determined afterwards "rational judgment perspective" and "only the results of the two main problems,and argues that the main cause of these two problems is to ignore the defense the investigation of subjective factors and" results-behavior "logic errors.In order to solve the existing problems in judicial practice,this paper analyzes and compares the three main theories of defense limit,namely,the theory of basic adaptation,the theory of necessity and the theory of compromise,and agrees to identify defense limit on the basis of the theory of necessity.Further clarifying the identification standard of defense limit on the basis of the necessary thought:Think shall start from the defense perspective,take the "advance" the judgment of the point,in the strength of the violation,defense defense capabilities as well as the balance of power between the two sides,and require the value judgment of defensive tactics in accordance with social ethics.