Modern criminal law theory holds that justifiable defense is to give citizens the legal right to stand up and defend themselves in an emergency that should be protected by law, which in itself means a supplement to the state's penalty power. The criminal law theory of continental law system usually thinks that justifiable defense is one of the reasons to prevent illegal behavior, while the criminal law theory of our country thinks that justifiable defense and emergency avoidance are "actions to eliminate social harm" and are not illegal in essence. Undoubtedly, these two propositions have different perspectives. In the field of criminal law (as well as other humanities and social sciences). Different perspectives or emphases on the same issue often lead to the formation of different schools. Moreover, as a theory of criminal law, it will also reflect to a certain extent whether its theoretical system is rigorous, whether its logical structure is reasonable, and whether its connotation reflects the functions of criminal law. In view of the nature of self-defense (one of the typical reasons for violating the law), Germany and Japan usually have the following theories: (1) teleology, which holds that self-defense is a means recognized by the state to achieve the goal of common social life. (2) the balance of legal interests (the principle of priority of interests) says that this is to sacrifice the interests with lower value to preserve the interests with higher value. (3) The social equivalence theory of behavior (eclecticism) holds that within the scope of the social ethical order formed by history, it can be understood as justifying the reasons allowed by this order. What you do is illegal because it is not illegal in essence, or it lacks its punishable illegality. (4) The theory of entrusting to protect the right to life refers to the criminal law norms entrusting nationals to protect their own interests. From the above point of view, it is not difficult to see that although it is demonstrated from different angles, it is believed that the essence of self-defense (under ethical and legal norms) is not illegal.
But what is intriguing is that, in this case, why not directly define it as "legitimate or legal behavior" and must include "blocking illegal reasons"? The author believes that this can be understood from the following two aspects. First, as far as the system of crime and punishment is concerned, it is not necessary to bring truly pure proper behavior into the system. Therefore, self-defense is different from other legal acts in essence and form because of its legal nature. Especially the subjective consciousness of legitimate defenders, their defense consciousness (knowledge and prediction of illegal infringement)-counterattack consciousness (determination to resist and struggle)-injury consciousness (intentional excessive defense) are not all clear or fixed in specific cases. Secondly, as far as logical structure is concerned, there is a logical competitive relationship between the constitutive elements of self-defense and the constitutive elements of crime in formal logic. That is to say, as far as China's criminal law theory is concerned, there is a competitive relationship between the objective behavior of self-defense and the objective behavior of crime. As far as Japanese criminal law theory is concerned, self-defense conforms to the "constitutive requirements" of one of the three elements of crime. Therefore, justifiable defense is not a "legitimate act" in the general sense, and should be included in the theoretical system of criminal law. Moreover, it is more accurate to define justifiable defense as "the reason for stopping the violation of the law" than as "the act of eliminating social harm", although these two definitions are made from the front and the back respectively, because the concept of justifiable defense itself has expressed its true legal meaning in one sentence, and defining it from the front is tantamount to repeating the same words, which not only does not help, but also fully exposes the weakness of criminal law theory. The new criminal law has undeniably integrated the new values under the socialist market economy. However, the residual unscientific theoretical viewpoints and overcorrected thinking mode seriously remind us that it is really necessary to deeply reflect on the theoretical viewpoints and structure of criminal law.
Second, the specifications and functions
By comparing with Japanese criminal legislation and theory, this paper discusses the legal norms and criminal law functions embodied in Article 20 of the new criminal law.
Article 36 of Japan's current criminal law stipulates that "urgent illegal infringement and defensive acts forced to be made for the rights of oneself or others shall not be punished." For acts that exceed the defense level, the punishment may be mitigated or exempted according to the specific circumstances. "In order to make up for the untimely exercise of criminal law rights in an emergency and better protect citizens' legitimate defense rights against vicious crimes, the Japanese National Assembly promulgated a special law, the Law on the Prevention and Punishment of Robbers' Crimes in the 5th year of Showa (1930) (formerly known as' thieves', which generally refers to robbery and robbery-murder, robbery-rape, entering a house with a weapon, etc.). 1, in order to prevent robbery or get back the robbed things. 2. In order to prevent people carrying weapons from breaking into houses, buildings or ships by sliding or breaking into guarded houses, buildings or ships. 3. Causing the perpetrator of the above-mentioned behavior to leave the place for no reason. Under the above circumstances, if a defender kills a criminal on the spot because of terror, consternation, excitement or embarrassment, he will not be punished when the danger to his life, body and chastity of others is eliminated.
However, the third paragraph of Article 20 of China's newly revised Criminal Law clearly stipulates that "... causing casualties of unlawful infringers is not excessive defense and bears no criminal responsibility". Aside from the logical contradiction between the fact itself and the law, there is undoubtedly a qualitative boundary between the law allowing the illegal infringer to "kill" and causing the illegal infringer to "kill" in terms of life value. On the one hand, the revision of criminal law emphasizes "a legally prescribed punishment for a crime", the restrictive function of criminal law, that is, the modest function of the state penalty power, and the protection of criminal judicial human rights. At the same time, it has formulated the laissez-faire clause of article 20, paragraph 3. According to the common sense of criminal law theory, murder, robbery and rape are all consequential crimes, and there are different criminal forms in different crime stage. The so-called "on-going" limit refers to the period from the actual "start" to the occurrence of the result (if the result has already occurred, it is not "on-going" and does not conform to the legitimate defense time), and whatever defensive behavior (method and intensity) is adopted, it will cause unlawful infringement "casualties". Although it does not seem to violate the principle of modesty of criminal law and limit the penalty power of the state, it actually embodies the idea of ignoring the human rights of criminals.
The legal norms contained in legal provisions have three functions at the same time, and its 1 declares the legislative will; Secondly, it limits the judge's discretion; Third, guide and standardize people's behavior. With its standardization and clarity, the actor can predict whether his behavior is legal, and the accuracy of the actor's judgment on his legal norms depends to a considerable extent on the legislative technology, that is, the accuracy of the written language except cultural concepts, ethics and religious beliefs in legal provisions. Often because of the word difference, the mandatory norms, prohibitive norms and compulsory norms of the law are far apart. The significance of "a legally prescribed punishment for a crime" lies in enabling people to foresee the nature of their actions. For example, according to 1979 criminal law on justifiable defense, people can clearly realize that justifiable defense must meet certain conditions, and certain actors must also pay attention to controlling their own defense methods and counterattacks when exercising their rights. Otherwise, according to 1997 criminal law on justifiable defense (especially Article 20, paragraph 3), people are undoubtedly inspired to establish an understanding of excessive defense.
Third, the theoretical basis
In the modern Japanese criminal law school, the orthodox definition of justifiable defense is that "justifiable defense and emergency avoidance are both called emergency avoidance (or self-help behavior). Originally, emergency action refers to allowing individuals to exercise their own actions as a supplement when legitimate interests cannot be protected by law, that is, when state organs cannot prevent violations of legal order or restore its legal order in time. If individuals are given the right to act in an emergency more widely, it will lead to the possibility of violating the legal order. In modern countries where legal remedies are relatively complete, it is necessary to restrict the illegality of behavior on the grounds of state of emergency. [4]
China's criminal law theory has also made necessary restrictions on the constitutive conditions of justifiable defense behavior, that is, it puts special emphasis on the subjective defense consciousness of the perpetrator of justifiable defense, distinguishes the constitutive elements of justifiable defense from imaginary defense through the cognitive errors of the "error theory" in criminal law, judges the legality of the behavior through its defense consciousness, and distinguishes the constitutive elements of "provoking troubles" and "justifiable defense"; In the objective aspect, it emphasizes the time and method of the actor's self-defense behavior, and the appropriateness and appropriateness of the degree of confrontation. Limit the opportunity of justifiable defense with "ongoing" (emergency) and distinguish the constitutive elements of "justifiable defense" and "improper defense" (before and after defense). By judging that its method and degree are "roughly equivalent", its behavior is limited to "excessive defense" In addition, in theory and practice, the behavior of both sides in a fight is not recognized as "justifiable defense" in principle. Give corresponding punishment to those who seek trouble, and give a lighter or mitigated punishment to those who undertake defense, excessive defense and excessive defense as appropriate.
As far as self-defense theory is concerned, there is no qualitative difference between Chinese and Japanese criminal law theories. However, when we examine this point in the General Theory of Criminal Law, we will clearly find that there are huge differences between them. For a long time, in the theoretical research of comparative criminal law, there are different opinions on this. In my humble opinion, the overall theoretical system and the theory of each part in the General Theory of Criminal Law are not perfect at the same level. There is a problem with the overall structure, and no matter how profound the theories of each part are, they can't make up for the deficiencies in the system, and vice versa. In China's general criminal law theory, especially in the theory of crime constitution, due to the adoption of substantive constitutive elements, and the definition of acts in criminal law such as justifiable defense and emergency avoidance as "acts of eliminating social harm" (it is just as well to think that they are advanced deeds literally), a kind of "fracture" between theory and practice has been formed, that is, in theory, only the constitution of crime or justifiable defense can be discussed separately. In judicial practice, in addition to the "four blocks", the different logical structure of the crime constitution leads to the different status of the theory of self-defense in the general system. As we all know, in Japanese criminal law theory, the establishment of a crime has three elements: 1, 2, illegality, and 3. The logical structure of responsibility (intention and negligence) is "exclusive or deductive", that is, when an act cannot exclude illegality and subjective guilt, it constitutes a crime, that is, it includes justifiable defense and emergency avoidance in the judgment of crime and non-crime, and it also means that there is no criminal violation. In China, the constitutive elements of a crime are four constitutive elements of a crime (1 subject, 2 subjective view, 3 object and 4 objective aspect), and their logical structure is "coupled", also known as substantive constitutive elements, and all four aspects are indispensable. Because it is a substantive crime constitution standard, it is impossible to judge the self-defense behavior in the "four big blocks", but two sets of standards must be used to judge it. Because of this, in the past judicial practice, some acts of self-defense (including legitimate or excessive) were often identified as criminal acts, which greatly dampened the enthusiasm of citizens. In fact, this is related to the rough standards and norms provided by criminal law theory for judicial practice. As mentioned above, it is not necessary to incorporate the truly pure behavior of eliminating social harm into the criminal law theory. Although there are essential differences between self-defense and criminal behavior, when exercising this legitimate right, as long as the boundaries of "ongoing" judgment, counterattack time and counterattack intensity are not properly grasped, its legitimate behavior will undergo qualitative change, from justice to injustice, from innocence to guilt. In view of the fact that in the past judicial practice, the standard of self-defense was not easy to master (another way of saying it is too strict in theory), which hurt the enthusiasm of citizens by mistake, we should look for countermeasures from the standard of judging cases (crime and non-crime), but the legislation chose other ways.
Of course, it does not rule out that legislation is based on the assumption that in the face of the rising criminal crime rate, especially the increasingly rampant "underworld" violent crimes, citizens need to be given greater defense rights. Although the starting point of this idea is not bad, how to embody the "principle of balance between crime and punishment" (Article 5) specially set in the new criminal law? Today, with the emphasis on the rule of law, strengthening punishment education and correcting its functions, it is the legislative intention of the new criminal law to protect and respect the judicial human rights of citizens and even criminals.
To sum up, the author thinks that the conclusion of the third paragraph of Article 20 of the new criminal law reveals the shortcomings of criminal law theory and criminal legislation in China, and it is necessary to study it.