About Justifiable Defence in Chinese Criminal Law
Justifiable defence is the act being exempted from crimes, namely, this act appears to cause damage to lawful rights and interests, but in essential it protects lawful rights and interests. Therefore, Chinese Criminal Law definitely prescribes that this act doesn't constitute crimes.
According to Criminal Law, an act that a person commits to stop an unlawful infringement in order to prevent the interests of the state and the public, or his own or other people's individual rights, rights of property or other rights from being infringed upon by the on-going infringement, thus harming the perpetrator, is justifiable defence, and he shall not bear criminal responsibility.
Justifiable defence must include the following conditions: Firstly, the purpose of this act is to prevent the interests of the state and the public，or a person's own or other people's individual rights, rights of property or other rights from being infringed upon by the on-going infringement. Secondly, there must exist an unlawful infringement, including criminal acts as well as other illegal acts. Thirdly, the unlawful infringement must be on going, which means an unlawful infringement has begun and has not finished yet. Fourthly, an actor can only defend against the person who himself commits unlawful infringement. Finally, the act of justifiable defence can not obvious exceed the limit of necessity and cause serious damage. If a person's act of justifiable defence obvious exceeds the limits of necessity and causes serious damage, which is considered as undue defence, he shall bear criminal responsibility. However, he shall be given a mitigated punishment or be exempted from punishment.
Moreover, in order to effectively protect lawful rights and interests and encourage citizens to carry out actively justifiable defence, our Criminal Law prescribes that if a person acts in defence against an on-going assault, murder, robbery, rape, kidnap and other crime of violence that seriously endangers his personal safety, thus causing injury or death to the perpetrator, it is justifiable defence instead of undue defence, and he shall not bear criminal responsibility. According to this provision, it is not undue defence to the acts in defence against crime of violence that seriously endangers one's personal safety.
Justifiable defence is an important problem in criminal jurisprudence. It is an effective way to protect the rights and interests of the state and people. However, in practice, it is also difficult to judge the limits of justifiable defence sometimes. It need further research by experts of criminal jurisprudence gradually.
正當(dāng)防衛(wèi)是排除犯罪性的行為，也就是說，這種行為在表面上給合法權(quán)益造成了損害，實(shí)質(zhì)上卻是保護(hù)了合法權(quán)益。因此，我國刑法明文規(guī)定這種行為不構(gòu)成犯罪。
根據(jù)刑法，為了使國家、公共利益、本人或者他人的人身、財(cái)產(chǎn)和其它權(quán)利免受正在進(jìn)行的不法侵害而采取的制止不法侵害的行為，對不法侵害人造成損害的，屬于正當(dāng)防衛(wèi)，不負(fù)刑事責(zé)任。
正當(dāng)防衛(wèi)必須具備以下條件：第一，這種行為的目的是為了保護(hù)國家、公共利益、本人或者他人的人身、財(cái)產(chǎn)和其它權(quán)利免受正在進(jìn)行的不法侵害；第二，必須存在不法侵害行為，包括犯罪行為和其它違法行為；第三，不法侵害必須正在進(jìn)行，即不法侵害已經(jīng)開始且尚未結(jié)束；第四，防衛(wèi)必須針對不法侵害人本人；最后，正當(dāng)防衛(wèi)行為不能明顯超過必要限度造成重大損害，正當(dāng)防衛(wèi)明顯超過必要限度造成重大損害的，屬于防衛(wèi)過當(dāng)，應(yīng)當(dāng)負(fù)刑事責(zé)任，但是應(yīng)當(dāng)減輕或者免除處罰。
此外，為了有效地保護(hù)合法權(quán)益，鼓勵公民積極進(jìn)行正當(dāng)防衛(wèi)，我國刑法規(guī)定對于正在進(jìn)行的行兇、殺人、搶劫、強(qiáng)*、綁架以及其它嚴(yán)重危及人身安全的暴力犯罪，采取防衛(wèi)行為造成不法侵害人傷亡的，屬于正當(dāng)防衛(wèi)而不是防衛(wèi)過當(dāng)，不負(fù)刑事責(zé)任。據(jù)此，對嚴(yán)重危及人身安全的暴力犯罪進(jìn)行防衛(wèi)，不存在防衛(wèi)過當(dāng)?shù)膯栴}。
正當(dāng)防衛(wèi)是刑法學(xué)的一個重要問題，是保護(hù)國家和人民合法權(quán)益的有效手段。但是在實(shí)踐中，有時也很難判斷正當(dāng)防衛(wèi)的限度，這就需要刑法學(xué)專家不斷進(jìn)一步地研究
Justifiable defence is the act being exempted from crimes, namely, this act appears to cause damage to lawful rights and interests, but in essential it protects lawful rights and interests. Therefore, Chinese Criminal Law definitely prescribes that this act doesn't constitute crimes.
According to Criminal Law, an act that a person commits to stop an unlawful infringement in order to prevent the interests of the state and the public, or his own or other people's individual rights, rights of property or other rights from being infringed upon by the on-going infringement, thus harming the perpetrator, is justifiable defence, and he shall not bear criminal responsibility.
Justifiable defence must include the following conditions: Firstly, the purpose of this act is to prevent the interests of the state and the public，or a person's own or other people's individual rights, rights of property or other rights from being infringed upon by the on-going infringement. Secondly, there must exist an unlawful infringement, including criminal acts as well as other illegal acts. Thirdly, the unlawful infringement must be on going, which means an unlawful infringement has begun and has not finished yet. Fourthly, an actor can only defend against the person who himself commits unlawful infringement. Finally, the act of justifiable defence can not obvious exceed the limit of necessity and cause serious damage. If a person's act of justifiable defence obvious exceeds the limits of necessity and causes serious damage, which is considered as undue defence, he shall bear criminal responsibility. However, he shall be given a mitigated punishment or be exempted from punishment.
Moreover, in order to effectively protect lawful rights and interests and encourage citizens to carry out actively justifiable defence, our Criminal Law prescribes that if a person acts in defence against an on-going assault, murder, robbery, rape, kidnap and other crime of violence that seriously endangers his personal safety, thus causing injury or death to the perpetrator, it is justifiable defence instead of undue defence, and he shall not bear criminal responsibility. According to this provision, it is not undue defence to the acts in defence against crime of violence that seriously endangers one's personal safety.
Justifiable defence is an important problem in criminal jurisprudence. It is an effective way to protect the rights and interests of the state and people. However, in practice, it is also difficult to judge the limits of justifiable defence sometimes. It need further research by experts of criminal jurisprudence gradually.
正當(dāng)防衛(wèi)是排除犯罪性的行為，也就是說，這種行為在表面上給合法權(quán)益造成了損害，實(shí)質(zhì)上卻是保護(hù)了合法權(quán)益。因此，我國刑法明文規(guī)定這種行為不構(gòu)成犯罪。
根據(jù)刑法，為了使國家、公共利益、本人或者他人的人身、財(cái)產(chǎn)和其它權(quán)利免受正在進(jìn)行的不法侵害而采取的制止不法侵害的行為，對不法侵害人造成損害的，屬于正當(dāng)防衛(wèi)，不負(fù)刑事責(zé)任。
正當(dāng)防衛(wèi)必須具備以下條件：第一，這種行為的目的是為了保護(hù)國家、公共利益、本人或者他人的人身、財(cái)產(chǎn)和其它權(quán)利免受正在進(jìn)行的不法侵害；第二，必須存在不法侵害行為，包括犯罪行為和其它違法行為；第三，不法侵害必須正在進(jìn)行，即不法侵害已經(jīng)開始且尚未結(jié)束；第四，防衛(wèi)必須針對不法侵害人本人；最后，正當(dāng)防衛(wèi)行為不能明顯超過必要限度造成重大損害，正當(dāng)防衛(wèi)明顯超過必要限度造成重大損害的，屬于防衛(wèi)過當(dāng)，應(yīng)當(dāng)負(fù)刑事責(zé)任，但是應(yīng)當(dāng)減輕或者免除處罰。
此外，為了有效地保護(hù)合法權(quán)益，鼓勵公民積極進(jìn)行正當(dāng)防衛(wèi)，我國刑法規(guī)定對于正在進(jìn)行的行兇、殺人、搶劫、強(qiáng)*、綁架以及其它嚴(yán)重危及人身安全的暴力犯罪，采取防衛(wèi)行為造成不法侵害人傷亡的，屬于正當(dāng)防衛(wèi)而不是防衛(wèi)過當(dāng)，不負(fù)刑事責(zé)任。據(jù)此，對嚴(yán)重危及人身安全的暴力犯罪進(jìn)行防衛(wèi)，不存在防衛(wèi)過當(dāng)?shù)膯栴}。
正當(dāng)防衛(wèi)是刑法學(xué)的一個重要問題，是保護(hù)國家和人民合法權(quán)益的有效手段。但是在實(shí)踐中，有時也很難判斷正當(dāng)防衛(wèi)的限度，這就需要刑法學(xué)專家不斷進(jìn)一步地研究