A Current Situation Review of"Obviously Exceeding the Necessary Limit"of Legitimate Defense and Its Connotation Definition
The key question of boundary about legitimate defense and over-defense is how to comprehend and definite"obviously exceeding in necessary limit"in legitimate defense.In present judicial determination,there are some cognitive deviations such as the"consequentialism"that emphasizes the damage result and ig-nores the defense behavior,and the"obvious excess"in the defense limit condition is often ignored.Based on the legislative purpose of the modification of legitimate defense system in the Criminal Law of 1997 and the po-litical stand to protect the legitimate rights and interests of defender more effectively,the defense act should be the most necessary limit to effectively stop the illegal infringement when determining the"necessary limit".And it is just the minimum limit of defense behavior identification,exceeding the"necessary limit"does not identify the defender as excessive defense,and only when the defense behavior reaches the degree of"obvi-ously exceeding"the necessary limit can it be identified as excessive defense.According to the classification of the degree of damage that may be caused by the act of defense to the personal safety of the infringer,"obvi-ously exceeding"should be at least a dangerous level above the necessary limit of defense.
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