How to determine excessive defense, and how to determine excessive defense?

"Excessive defense" refers to conduct in which the defender clearly exceeds the necessary limit when defending the perpetrator who is carrying out an unlawful offense, causing major harm.

China's criminal law does not stipulate the form of the crime of excessive defense, and there are differences in the theory of criminal law, and judicial practice generally adopts the theory of excluding direct intent, that is, it is believed that the form of crime of excessive defense can only be indirect intention or negligence, and cannot be direct intention. For it is impossible for the purpose of justifiable self-defense and the purpose of crime to coexist in the mind of one person at the same time. Others, such as negligent negligence, overconfident negligence, and indirect intent, are forms of crimes without a criminal purpose, and do not contradict the justification of the purpose required for excessive defense, and thus can be forms of excessive defense.

The subjective guilt of excessive defense is generally negligence, but in individual cases, the possibility of intent is not excluded, that is, in the course of exercising legitimate defense, the defender may obviously cause significant damage to his own defensive behavior beyond the necessary limit, and in general, he did not foresee it because of negligence, or he had foreseen it and believed that it could be avoided, but in individual cases, the perpetrator may also have an intentional subjective attitude towards the occurrence of harmful results that clearly exceed the necessary limits. However, this kind of intention is generally due to indirect intention.

The criterion for determining excessive defense is that the defender clearly knows that his defensive conduct will clearly exceed the necessary limit of legitimate defense and cause major harm, and allows such major harm to occur in order to achieve the purpose of legitimate defense, which is indirect and intentional excessive defense.

Excessive defense is negligence, and it must be negligence. Otherwise, it translates into an intentional crime. The principle of punishment is different.

1.The defense time is comparable.

The act of defence must be carried out at the same time as the unlawful aggression or at the moment of danger. If an act taken after the fact is not directly related to self-defense, it is more like a form of retaliation and is not justified self-defense.

2.The level of defense is comparable.

Defensive behaviour must not be taken beyond what is necessary, and unnecessary harm needs to be avoided as much as possible. If the degree of damage caused by the act of defence is manifestly excessive, it also falls beyond the scope of legitimate defence.

3.The means of defense are comparable.

The means of defence adopted must be commensurate with the purpose of defence and must not be overly forceful. If the use of force is clearly excessive, it is a regimental super-defense. For example, use a knife to hurt an attacker without **.

4.There is no defensive alternative.

If there are other relatively mild means of anti-collapse and trembling that can be employed, but deliberately choose violent means, this is also beyond the scope of legitimate defense. Justifiable defence is to be exercised when there is no other alternative. If the act itself cannot produce a defensive effect, it is difficult to determine that it is justified defense.

5.Report a request for help.

If conditions permit, you should choose to seek help from ** or others first, which is also a relatively moderate means of defense. Rather than immediately retaliating with force, this would better justify the motive for the act.

6.The motive of the act is pure.

The motive for the act of self-defense must be to prevent unlawful aggression and protect one's own life or the physical safety of others. If there is a motive for intentional harm or retaliation, it is beyond the scope of legitimate defence.

7.The act of defence must be commensurate with the act of aggression.

The means and extent of defence must be commensurate with the actual aggression and must not be excessively extensive. An act of defence is not justified if it is intended to take revenge or punish rather than to stop the violation. The person being defended must face the actual violation, and if there is no prior violation, it is a mere misunderstanding or a false alarm, and the conditions for legitimate defense are not met.