The Generation Of "justifiable Defense" Guiding Cases

Justifiable defense is the right granted by law to citizens who have the courage to fight against unlawful infringement without bearing criminal responsibility when they themselves or others encounter unlawful infringement.However,due to the lack of clarifying the standard of "obviously exceeding the necessary limit" in the legislation,and the erroneous tendency of "excessively insisting on the result-only theory" and "demanding the defender to make a reasonable choice" in the judicial practice,the operation of our country’s justifiable defense system is somewhat unsatisfactory.Although the revised new criminal law has further raised the applicable standard of justifiable defense,and increased the provision of special defense.But the clause of article 20 of criminal law itself to identified several key points such as "violation" of justifiable defense,"clearly more than necessary to limit" and "ongoing" did not make clear specification interpretation,not only results in theoretical circle of criminal law theory of differences,also result in practice because of the lack of unified standard to the applicable law of justifiable defense.For example,there are many controversies in the academic world about the standard of "defense limit".Such as basic adaptation,necessary and equivalent.According to the theory of basic adaptation,the means,intensity and consequences of the defense act should be adapted to the basic nature of the unlawful infringement.It must be said that as long as the objective act of defense is necessary to stop illegal infringement,it does not exceed the necessary limit;The theory of equivalent belongs to the synthesis of the theory of basic adaptation and necessity.It holds that the defense act should be based on the standard of being sufficient to stop the unlawful infringement while not bringing unnecessary damage to the unlawful infringer,and the means and intensity of the defense act as well as the nature of the protected rights should not be far from the means and intensity of the unlawful infringement.In view of the above differences,there is still no clear response on the legislative level to which doctrine should be used as the standard to determine whether a defense act is obviously beyond the necessary limit.The promulgation of the 12 th batch of guiding cases of the Supreme People’s Procuratorate not only filled the gaps not covered by the above laws and judicial interpretations,but also made a clear reference standard for several difficult issues in determining justifiable defense in practice.It is mainly reflected as:Clarifying the basis for judging the necessity of defense.Necessity of defense means that a certain behavior is the most appropriate behavior to eliminate illegal infringement,which can not only effectively stop illegal infringement objectively,but also make people draw the conclusion that "the defender should retaliate in this way".On the one hand,the necessity of defense provides a choice for the defender in the face of illegal infringement.There are multiple acts for the defender to choose,and the defender can choose one act that will cause slight harm.On the other hand,the defender also needs to consider that once the defensive behavior is not appropriate,he may suffer greater damage.Therefore,the necessity of defense should not make the defender excessively fit the label of "most appropriate" when the defense behavior is insufficient,and make the defender bear the risk of illegal infringement.Second,it is clear that the judgment of defense necessity should be made in advance.First of all,it should assume that a third party with mature rationality stands in the situation of the defender at that time,and what choice will the third party make? Whether to take the same defense measures as the defense person,or to take other defense measures.If the third party does not take the defensive measures taken by the defender at the time,what will be the result of the infringement? In practice,some defensive measures seem to exceed the necessary limits,but if the defender does not take defensive actions,there is often no more suitable means to ensure that he is not infringed.At this point,the defensive measure is no more than necessary.Therefore,in practice,we should abandon the logical thinking of judgment after the fact regardless of the importance of right and wrong,and do not form the wrong logic that only when the illegal infringer begins to kill,can the defense begin to defend.To judge that an unlawful infringement is in progress,we should take into account the specific circumstances at the time of the crime and make a comprehensive measurement from the situation at that time,instead of making a separate judgment on the infringing behavior based on the theoretical initiation and completion of criminal law.Because of the criminal law theory with comparison with focus on the infringement behavior that the infringer has in phase behavior whether can be fined,and the provisions of article 20 of the criminal law "ongoing unlawful infringement," defense is more focused on the person’s legal rights are protected and cannot be confused the two completely different ideas together.Four,in the "other violent crimes seriously endanger personal safety" when should pay special attention to the "murder,kidnapping,robbery,rape," the crime such as generalized understanding,namely the provision of single refers to the four charges not only shows the behavior of the surface,also include in the above four kinds of crimes of violence as a means,to implement other violence,thus breaking the other charges of criminal behavior,and practice not only will the unlawful infringement terms listed in the simple comparison between violent crime and negative defense a person easily have the defense of nature.