| This paper takes "Zhao Yu justifiable defense case" as the starting point of analysis,summarizes several prominent issues in the judicial recognition of justifiable defense at present,focuses on discussing two important constituent conditions in the system of justifiable defense--defense time and defense limit,and analyzes and compares various recognition theories in the current legal circle.It also puts forward some suggestions on how to accurately judge the time and limit of defense in judicial practice.First of all,the author thinks that "direct confronting theory" should be adopted as the identification standard of the beginning of defense time when determining the node of the beginning of defense time.When determining the node of the end of defense time,"eliminating danger theory" is adopted as the identification standard of the end of defense time.In judging the necessary limits of justifiable defence,the combined standard of "basic adaptation","effective deterrence" and "objective necessity" should be applied.In understanding the "necessary limit",to accurately judge the necessary limit of defensive behavior,we need to analyze from three aspects: "the size of the offensive force of the unlawful infringement","the urgency of the unlawful infringement",and "the rights and interests infringed by the unlawful infringement".Secondly,the author summarizes several dilemmas existing in judicial recognition of justifiable defense system: In judicial practice,concluded that the probability of justifiable defense is low,the strength of the violation is not a consideration whether single or absolute factors constitute the justifiable defense,at the same time,it should not be regarded as justifiable defense fistfight behavior,not means the unequal rule out the possibility of justifiable defense set up,also can’t because of the unequal’s approach as excessive defense.Thirdly,the author analyzes the operation path of the accurate application of justifiable defense.The author believes that the guidelines should be used as a guide to judge the defense time according to the actual situation.The judgment of defense time should be taken into account the subjective cognitive state and objective behavior of the defender.In addition,the judicial organs should change the judicial concept of justifiable defense,correctly understand the legislative spirit of the system of justifiable defense,judge the limit of defense from the perspective of "beforehand",resolutely abandon the "resultalism" thought,analyze the nature of the behavior first and then examine the nature of the result,and correctly distinguish the boundary between affwringing and justifiable defense.Finally,the author from the perspective of the theory of anticipated possibility,from three aspects as reasonable method reveals that the theory of anticipated possibility of law philosophy connotation,points out that the judicial organs shall be as the theory of anticipated possibility of one of the standard of the justifiable defense behavior of justice,"expected possibility" theory as the instruction,to bring into full play the subjective initiative of judicial organs in self-defense that role,Better realize the unity of reason law in judicial practice. |
