Some understanding of article third of criminal law in China twentieth

The special defense right is a private force based on the justifiable defense right of the right of relief, the right of special defense setting, effective warning and deterrent to criminals of violence against the personal safety, the containment and prevention of violent crime, protect the personal rights and interests of citizens, has very important significance to do boldly what is righteous. China's criminal law provisions of the third paragraph: "twentieth of CP for murder, robbery, rape, kidnapping and other serious violent crimes endangering personal safety, to take defensive actions, against illegal caused casualties, it is not undue defence, and he shall not bear criminal responsibility." This is the new criminal law of our country The right of citizens of the right of special defense. But the provisions of our country exists unreasonable, legal language is not standard, the problem is not clear, will directly affect the exercise of the right of special defense right of citizens, the legitimacy and fairness of the judicial personnel of the people but also reduce the criminal trial work in some extent. Therefore, the author thinks that the relevant provisions in the third paragraph of the criminal law is explained with twentieth.

One, "the connotation of".

The "attack" is not a legal term, according to Xinhua Dictionary, violence refers to the implementation of harm behavior. Thus, single literally, "or" the meaning is very broad, as long as the implementation of the damage behavior of people, regardless of their size, whether to constitute the crime, can be identified as the perpetrators and application of special defense. This is clearly and the establishment of special defense right spiritual conflict with each other, in the concrete judicial practice, should be combined with the legislative spirit and the concrete situation of restriction for "assault" interpretation of the concept. From the provisions of section third of the criminal law twentieth, "or" murder, robbery, rape and kidnapping, for parallel relationship, which embodies two meanings: one is "murder" does not include murder, robbery, rape and kidnap; two is the "attack" on the victim's damage degree and murder, robbery, rape and kidnap has serious consequences to the same extent. Therefore, the author believes that, in general, the criminal law twentieth stipulation of "murder" shall mean cannot judge the violent crime the specific form of personal safety.

Two, the "murder, robbery, rape, kidnap" understanding.

In the study of judicial practice and law theory, many scholars support "charges" point of view, the "murder, robbery, rape, kidnap" as four kinds of charges, the right of special defense can only constitute the four kinds of crime in violation of human behavior is a citizen, not the other charges of criminal behavior the special defense. The author believes that the biased understanding, although "murder, robbery, rape, kidnapping" and "other serious harm pregnant security crime" in the legislative technique for parallel content, should be understood as four kinds of crime, but in the judicial practice if only narrowly interpreted as four kinds of crime, it will many of the serious harm the legitimate self-help rights. For example, in accordance with the provisions of article 240th of the criminal law, adultery is aggravating circumstances and trafficked women, children constitute the crime of abducting and trafficking in women and children, do not constitute a separate rape and kidnapping. In accordance with the "accusation theory", in this case, citizens have no special defense right, this is clearly inconsistent with the legislative intent. Therefore, the author believes that "murder, robbery, rape, kidnap" should be understood as a criminal act or crime means, as long as there is murder, robbery, rape and kidnap victim behavior, can certainly carry out special defense. So that the victim has the same right to the relief of private force in dangerous situations in the same, legislative purpose and goals so as to realize the right of special defense.

Three, the definition of "other serious endanger the personal safety of violent crime".

First of all, "seriously endangered" is difficult to determine the extent of. The establishment of special defense right is generally violent crime to fight caused human casualties, if not strictly grasp the "serious" bounds, most likely to be a violation of the criminal law spirit phenomenon, namely in the non violent crimes in without causing casualties, victims of serious personal injury infringement violations in the implementation after the special defense against the people, and for the damage more often than in accordance with the criminal law of the conviction and sentencing is more serious, and did not die in the special defense after the infringer should accept the punishment, this is a serious violation of "the consistent principle of punishment".

Secondly, the scope of "personal". According to the Xinhua Dictionary, "personal" refers to the person's body, life, action, reputation etc.. Thus, the scope of "person" is very broad, it includes not only the individual's life and health, it will also expand the scope of application of right of special defense, serious damage to infringement of the rights and interests of people. For example, clearly does not have the special defense right of reputation infringement of personal severity, urgency and uniqueness conditions, special defense can not be implemented. Therefore, the author thinks, the special defense of "person" should be mainly refers to people's life, health, freedom, and human body closely related content, and contains no honor, reputation and other general can recover the personal rights and interests.

Third, about the "crime" of understanding. The provisions of the crime can make two kinds of interpretation, an interpretation for the "charge", think "crime" is that crime constitution, that established the specific charges of criminal law. Another explanation for "crimes", think of the "crime" refers to the crime, do not consider other aspects of the crime. The two biggest difference lies in the interpretation of crime subject lack responsibility implementation can make special defense. For example, looting a persons under the age of fourteen or complete loss of homicide behavior identification and control ability of mental patients, can make the special defense. In accordance with the "charges" explanation, the lack of responsibility of the person does not have the qualification to constitute a crime, the behavior although the establishment of normal subject of crime, but because the subject is not suitable, the act does not constitute a crime, not a natural defense for its special. According to the "crimes", regardless of whether the behavior main body has the legal responsibility ability, as long as the implementation of the crime, can be carried out on the special defense. The author believed that the two views are reasonable, but is too one-sided, in judicial practice, not simply to judge, to be combined with the actual situation analysis. The victim is often difficult to determine the risk to come unexpectedly against the actual age and mental state; in addition the lack of responsibility of the infringer, such as mental illness, often have a stronger than the general subject of infringement, the victim even knowing violation subject is the lack of responsibility ability, but in the face of great personal danger, for defensive instincts implementation, the principle should be included in the scope of special defense. But at the same time, it can only be used as a special case of the special defense system, should be strictly limited. Therefore, I think that the special defense for lack of responsibility of the person's need to meet the following several points: first, the victim did not know and could not determine infringer for lack of responsibility in the implementation of special defense. Second, the victim knows or should know the infringer is the lack of responsibility of the person, but it has enough against the ability, if the victim is not the implementation of special defense, will lead to serious consequences own casualties. Third, the special defense is the only way that the emergency rescue, in addition to the special defense no self-help methods other make oneself from harm.

In addition, the implementation of the main special defense is also the theoretical debate. According to the provisions of the criminal law, legitimate defense can be implemented by the victim and the third person, as a supplementary mechanism of self-defense, the implementation of the main special defense and self-defense is consistent, namely the third person and the victim has the right of special defense. The author thinks, there is a big problem related to set up special defense implementation subject, third independent emergency personal risk, choose more relief could be general, special defense is not inevitable choice. Third people become the special defense right implementation main body, to a large extent encouraged do boldly what is righteous, strengthened the protection of victims, but also increases the damage to the victim, for example by special defense in the name of malicious take revenge, intentional injury against the people, then people become victims of abuse, serious damage to their personal interests, breeding a new crime. Therefore, unconditional third people who will be subject to the provisions of the special defense is unreasonable, third people to implement the right of special defense made more stringent requirements. The author thinks, should cancel the right of special defense third people, but third people to Article twentieth of the criminal law stipulated in the third paragraph of crime pursuant to the justifiable defence to deal with, and to a certain extent, ease the defense limit, or make provision for exemption to protect the rights and interests, see volunteers for third people.

In conclusion, we should be aware of, the establishment of special defense in criminal law of China is progress, but the abuse of the right of special defense can also cause damage to the criminal law system, is not conducive to the protection of human rights, so deal with the existing provisions of the special defense is to supplement and perfect, relevant departments issued the relevant judicial explanations, make clear the third paragraph twentieth of the criminal law, make it play a positive and effective role in the judicial practice.