Research On The Limits Of Justifiable Defense

This thesis firstly investigates the laws concerning the limits in the justifiable defense of the two representative countries of the civil law system,Germany and Japan.The current German Penal Code emphasizes the "necessity" and "appropriateness" of justifiable defense,and requires that defensive behavior should be the most moderate of many effective defense methods in principle,while requiring social moral restrictions in exceptional circumstances.Japanese criminal law regards self-defense as a "last resort" act,that is,an act that should be within the minimum necessary.On this basis,the enlightenment to our country is summarized—focusing on the defensive behavior itself and paying attention to the psychological consideration of the defenders.There are different theories and opinions on the limits of justifiable defense in traditional criminal law theories.In this regard,this thesis reflects on the popular theories and the phenomenon of "results-only" in judicial practice in recent years and puts forward effective correction ideas.We should abandon the "basic adaptation theory" and "compromise theory" generally supported in theory and practice,adhere to the "necessity theory" as the guiding ideology of the limits of justifiable defense,and emphasize the necessity of defense behavior."Obviously exceeding the necessary limit" and " significant damage " are the two core norms of the limit conditions of justifiable defense.First of all,in terms of bilateral relations,this thesis agrees with the "double condition theory",which regards "obviously exceeding the neces sary limit" and " significant damage " as independent conditions.The former belongs to the behavior limit condition,which is dominant;and the latter belongs to the result limit condition,which is auxiliary.The second is the identification of these two aspects.This thesis divides "obviously exceeding the necessary limit",from "necessary limit" and "obviously exceeding " two small aspects to understand respectively."Necessity theory" emphasizes the connotation of "necessity limit" from two different directions: one of them is that defense behavior meets necessity and can restrain illegal infringement effectively,On the other hand,on the basis of effectiveness and necessity,the defender should take the minimum defensive measures among many choices.Correcting its comparisons in the analysis of " obviously exceeding ",and Noting that " obviously exceeding " should mean a comparison between the actual act of defence and the minimum limit of defence,At the same time,the tripartite structure produced by the word " obviously " is analyzed..The definition of " significant damage " refers only to personal injury and is limited to serious injury and death.Minor injuries are not "significant damage".At the same time,this thesis holds that the understanding of "significant harm" is essentially the affirmation of the measurement of benefits.On the basis of affirming that the defense behavior does not meet the necessity,the second step is to consider the defense result based on the method of interest measurement.