Research On The Criteria For Determining Legitimate Defense In Domestic Violence

Frequent occurrence of domestic violence in our country,Although with the social development,as the "husband right" internal family punishment right has been gradually abandoned,women’s weak position in the family has improved to some extent,but because of the existence of concealed domestic violence,there are still serious domestic violence incidents away from the public field of view,only a few severe domestic violence cases have received public attention.Battered women suffer a lot in domestic violence and often resist domestic violence through violence when they cannot bear it.The behavior of "countering violence with violence" walks between legitimate defense and criminal behavior.Therefore,this paper mainly studies the behavior of "countering violence with violence" of battered women in domestic violence.By exploring the identification standard of justifiable defense in domestic violence,analyzing the justification basis of women who have been abused to deal with violence,the establishment standard of the applicable conditions of justifiable defense in domestic violence is clarified,which lays the foundation for the conclusion of eliminating criminalization and lightening punishment proposed in this paper.By collecting sample data and typical cases of judicial practice,this paper analyzes the nature of the violence against the violence of women victims,and evaluates the judicial status quo.In some cases,it is rare for the abused women to be decriminalized by using violence to deal with violence.However,it is also a reflection of fairness that the judges take into account the past of the abused women and give lenient punishment as appropriate.Justifiable defense is a general system in Chinese criminal law,which has universal applicability,but in the case of domestic violence,the applicable conditions of justifiable defense need to be analyzed one by one.In the identification of causative conditions,it is difficult for the threat of violence to be used as the cause of defense in general circumstances,but in domestic violence,because the battered woman may suffer long-term abuse,the threat of violence can be used as the causative conditions.In terms of the identification of time conditions,the defense time in the face of domestic violence may only be properly advanced to protect the safety of the women,and the identification standards of time conditions and cause conditions should be reconsidered.In terms of the identification of the limit conditions,the grasp of the limit of the behavior of the abused women should be relaxed appropriately,and it should not strictly require the abused women to stop resisting from the perspective of outsiders,and prudently recognize the excessive defense.Only by clarifying the identification standard of justifiable defense in domestic violence can the abused women be given weapons to fight against domestic violence fundamentally.In addition,based on the theory of criminal law,this paper analyzes the feasibility of reference to the supporting theory of killing husbands for abused women abroad.Although the "syndrome of violent women" and the "rationality principle of criminal law" of common law countries and the "expectation possibility theory" and "defensive emergency to avoid risk" of mainland countries are not suitable for the current criminal law system of China,they have certain guiding significance and provide specific ideas for the treatment of violent women with violence to eliminate crime and light punishment.