Proportionality Judgment In Cases Where Defensive Behavior Causes The Death Of An Unlawful Offende

In recent years,judicial practice has gradually become more active in determining legitimate defense,but there are still some problems in judicial practice in judging the proportionality of lethal defense acts.This article aims to summarize these problems and analyze the reasons for their existence,so as to clarify the judgment of the lethal defense limit for judicial practice.This article has four sections:The first part of the article is told the problems in judging the lethal defense limit in existing judgments.First,the measure of interests in the defense limit isn’t clear,which is mainly reflected in two aspects: one is based on a single interest measurement standard,resulting in lethal defense being easily identified as excessive defense,and the other is that although the interests are weighed by considering elements such as the victim’s self-responsibility and the defender’s maintenance of legal order,these elements can’t be accurate in individual cases,nor can it be proved that the legal interests of the defender are superior to the legal interests of the unlawful infringement of human life;second,to expand the limits of defence by interpreting the general wrongful infringement faced by defenders as a special infringement under article 20,paragraph 3,of the Criminal Code;Third,the inclusion of factors belonging to the judgment of responsibility into the judgment of wrongfulness undermines the rule of priority of wrongful judgment.The second part is the promotion of the "comprehensive theory" of the determination of defense limits.Due to the single measure of legal benefit of the "basic compatibility theory",the determination of the defense limit is too rigid."on the necessity of defense limit" only the necessity of defense as the criterion for defining legitimate defense,blurring the reasonable distinction between wrongfulness and responsibility.Although the "compromise theory" is a compromise between the two,the standard of interest measurement is still not clear,and the balance of interests and the necessity of defense haven’t been integrated,resulting in no "compromise effect".Therefore,in order to clarify the review criteria for lethal defense,the determination of defense limits should adopt a "comprehensive theory",that is first judge the order of legal interests according to positive law,and then judge the necessity of defense based on the relevant factors of the case.In this regard,Article 12 of the Guiding Opinions on Legitimate Defense stipulates that "judgments that clearly exceed the necessary limits" should synthesize the nature,means,intensity,degree of harm of the unlawful infringement,the timing,means,intensity,damage consequences and other circumstances of the defense,which is actually an endorsement of the "comprehensive theory".The third part is the specific judgment of the proportionality of lethal defense,first,judging the necessary limit of defense according to the "comprehensive theory",and second,judging the "obvious exceeding" of the necessary limit of defense.To judge the order of legal interests in the "comprehensive theory",it is necessary to first determine the nature of the unlawful infringement and the legal interests that may be infringed,and then determine the range of punishment for the behavior of the infringer and defender in accordance with the Criminal Law.The nature and possibility of unlawful infringement should be objectively judged,and special infringement should objectively have the possibility of causing serious injury.To judge the necessity of "comprehensive theory," it is necessary to examine the urgency of the unlawful infringement,the nature and possibility of the act,and the reasonableness of the exercise of lethal defense.The urgency of unlawful infringement needs to consider the nature of legitimate defense as a private remedy and the effectiveness of defense,and if the victim’s legal interests can be protected in a timely manner,the urgency is denied,and when the unlawful infringement is in the late preparatory stage and is close to the implementation stage,as the start time of defense,the end time of the unlawful infringement is based on whether the wrongful infringer objectively still has the ability to infringe.The reasonableness of the exercise of lethal defense needs to consider the legal interests of the infringement,special infringement also has a limit of defense,and if the intensity of special infringement has been significantly reduced,the defender should no longer exercise lethal defense.In general,there is a difference between the necessary limit and the obvious exceeding of the necessary limit generally exceeding or significantly exceeding 2 values,but the act of defensive necessity in the "comprehensive theory" can improve the legal benefit of the lower rank of the defender’s protection,so the judgment of "obvious exceedance" is actually 3 differences.The fourth part is the test of the lethal defense judgment rule.Use specific rules to test controversial lethal defense cases in judicial practice.