On the Foundation of Self-defense—A Critical Clarification of Dualism
The foundation of justification,foundation of self-defense,and elements of self-defense are different questions.Dualism on the foundation of self-defense is determined by pluralism on the foundation of justification.The principle of superior interests is not a foundation,but a methodology for resolving conflicts of interest and one of the criteria of judging self-defense extent.Individualism on foundation of self-defense has its logical consistency,but conflicts with Chinese criminal law.The"attributability"of the attacker could only explain the extent of self-defense,but not a justification.The foundation of self-defense in Chinese criminal law is dualism which combines personal-rights-protection and legal-order-maintenance.However,an internal transformation from focusing on legal-order-maintenance to personal-rights-protection should be accepted.The maintenance of legal-order is to confirm the actual effect of behavior norms,rather than maintenance of the overall legal-order or prevention effect.A reasonable explanation conclusion for setting self-defense elements can be provided by adjusting two factors of dualism.
foundation of self-defensesuperior interestspersonal-rights-protectionobjective imputationlegal-order-maintenance
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