There is a principle in criminal law called "crime and punishment should be adapted". In the most straightforward terms, there is as much responsibility as there is guilt and as much punishment as there is responsibility. Heavy penalties are imposed for felonies, light penalties for misdemeanors, and the innocent are irresponsible. But sometimes the behavior of the actor also causes damage to the legal interests, but the criminal law does not consider it a crime. According to the principle of a legally prescribed punishment for a specified crime, there is no crime without an express law and no punishment without an express law. So how to protect these infringed legitimate rights and interests? If these legitimate reasons are not restricted, it will be difficult for society to achieve stability, and people's lives will also fall into certain worries, especially the promises of right holders, which must be strictly restricted. Through the analysis and demonstration of these legitimate reasons, this paper defines its reasonable scope and points out the unreasonable defects in the current legislation.

Keywords: justifiable reasons, justifiable defense, emergency avoidance, reasonable scope

First, the definition of criminal law legitimacy

Legitimate cause, also known as illegal cause, refers to the situation that the behavior is similar to crime in form, but it does not infringe on legal interests in essence, so it is excluded in the process of conviction. It mainly includes the following situations: self-defense, emergency avoidance, legal behavior, legal business behavior, obligee's commitment behavior, self-help behavior and obligation conflict.

As can be seen from the definition, these acts will infringe on legal interests and are similar to crimes in form. Crime is illegal and should be punished by criminal law, which is harmful to society. Justification reasons do not have the above characteristics and properties. It is precisely because there is no infringement of legal interests and social harm that the criminal law excludes it from the scope of illegal crimes.

According to the classification, justifiable reasons can be divided into legal reasons and illegal reasons beyond the prescribed limits. The former refers to the legitimate defense and emergency avoidance clearly stipulated in the criminal law. This is also reflected in civil relations. The latter refers to criminal law, although it is not clearly defined. However, common behaviors in real life, although objectively causing certain damage results and formally meeting the objective requirements of some crimes, are neither socially harmful nor criminally illegal in nature, and also belong to the reasons for excluding crimes, mainly referring to the other five situations. The latter five situations are the focus of my explanation, because there is no explicit provision in the criminal law, and the scope is not clear and strict enough, so it is easier to break through the boundaries and change from legitimate reasons to illegal crimes, which is not conducive to the sanctity of the criminal law and the stable development of society.

2. Legal reasons for breaking the law.

(1) Self-defense

Self-defense is no longer strange to us. It is emphasized when we study civil law, and it is also a major focus in the judicial examination. It is also more common in life. So it can be said that it is the big brother of the whole defense. Is the most important legal act. Theoretically, his legal origin is the right of self-defense explicitly endowed by law, in order to protect citizens' personal safety and property safety and encourage citizens to resist the rights of criminals.

However, it does not mean that citizens can carry out defensive acts at will. Only defensive acts that meet the statutory conditions belong to legitimate defense and do not bear criminal responsibility. Article 20 of the Criminal Law clearly stipulates the conditions of justifiable defense, including the reasons, time, intention, object and limit of justifiable defense. Only when these five conditions are met at the same time can self-defense be formed. Specifically, the cause of self-defense must be the actual illegal infringement, not the behavior that the actor thinks exists, but actually does not exist or is not an infringement at all. This is a hypothetical defense. The actor is at fault for the result of the damage. If the criminal law provides for it, he is at fault; if there is no provision, it is an accident. The illegal infringement has ended, and the criminal is subdued, escapes from the scene or loses the ability to infringe and stops voluntarily. After giving up the crime, the actor still insists that the other person is a bad person, or still wants to hurt or maim him, which forms improper defense. Those who meet the constitution of a crime are generally punished as crimes. Intentional injury is the most common crime. Many citizens are dissatisfied or don't understand the advance setting of defense. They thought the other side had rushed to my side with a knife. Although he didn't do it, if he did, I wouldn't immediately fall in a pool of blood. Do I have to wait for him to stab me to the ground and make me bleed and helpless before I can fight back? This is simply doing nothing. Is it possible to strike first and stab each other? The law does not recognize it.

Early defense is likely to be suspected of intentional injury. I think this should be treated differently. If the other party is armed and it can be judged by various factors that the other party may shoot and hurt people, citizens should be allowed to take the initiative to attack and subdue the other party. But the perpetrator just bought a gun or just took a pistol out of his clothes, so he should be unable to defend himself. The purpose of defense must be to protect the legitimate rights and interests of oneself or others or to safeguard national security and social welfare. If it is to protect illegal interests, such as drug dealers violently resisting law enforcement for stolen goods, it is certainly not illegal. Defensive provocation and accidental defense can also be judged by logical thinking, which is harmful to society and should be punished by criminal law, and should not be classified as justifiable defense. Let's talk about accidental defense first. Party A bears a grudge against Party B. When Party B wants to kill Party C, Party A takes the opportunity to shoot and kill Party B. On the surface, it meets the constitutive requirements of unlimited legitimate defense, but in fact, Party A has the criminal intent to kill Party B, and should establish the crime of intentional homicide to punish it. And self-defense must be aimed at the infringer. If it is a legitimate defense against a third party, it can only be justified and exempted through emergency avoidance.

The limit of defense is the most difficult point to grasp in legitimate defense. Theoretically, it is enough to stop crimes against people, that is, to stop them. However, in practice, it is difficult to distinguish between over-limit and over-defense. Theoretically, we can grasp it through two points: first, whether this kind of defensive behavior is necessary to stop the crime, and second, whether the defensive behavior is compatible with the result of illegal infringement. The subjective mentality of the actor here is generally negligence, but there are also indirect intentional situations, which should be treated differently here.

For unlimited defense, that is, there is no excessive defense, it must be required that the behavior of the perpetrator is a serious intentional injury, which seriously harms the personal rights and interests of the infringed person, and it must be a violent crime that may cause serious harm to the victim before it can be infinitely defended.

If it is a property crime such as robbery, but it does not endanger the personal safety of the victim, I don't think this kind of infinite justifiable defense should be applied. Even from the legal point of view, a person's life should be higher than property, even if it is a villain, otherwise it is a violation of human rights and an insult to the whole society. This is one of the important reasons for the judicial abolition of the death penalty for economic crimes in China.

(2), defense device

The question is whether a preset defense device should be set in advance if personal injury is caused to the illegal infringer. In real life, many melon farmers like to set up a power grid in their own greenhouses, and then write on the outside of the greenhouse that there is electrical danger here. If you get close, you will be at your own risk. I don't think this should be self-defense. Although the melon farmers have made it clear, it does not rule out that the infringer is illiterate, or after reading these words, he mistakenly thinks that the melon farmers are making plans in vain, alarmist and electrocuted. Moreover, in most cases, melon thieves act at night, so it is difficult to see the warning signs outside, which is very likely to cause casualties. I think it is unfair not to pursue the criminal responsibility of this melon farmer. After all, his behavior has endangered public safety, and the installation of power grid caused death, which obviously exceeded the reasonable defense limit.

If you are in your own home, in order to prevent thieves from invading and stealing, you should be allowed to set up a small current defense device. The main scope here is limited to whether this kind of defense device endangers public safety and exceeds the necessary limit of defense.

If you are fighting with each other, you must make an analysis and treat them differently according to the specific situation. According to the general thinking, fighting is an act of mutual aggression between the two sides, and it is certainly impossible to establish legitimate defense. The purpose of both sides is to attack each other. However, if one side has always been willing to avoid, has no intention of fighting, and demands a truce, and the other side refuses to stop there, thinking that it has already suffered, and it has to be pursued step by step, then those who are willing to stop fighting should be allowed to defend themselves properly. I think this should be expanded, otherwise it will be difficult to protect these repentants. It also has a deterrent effect on stubborn criminals.

I once came across such a case, which was about crossing the border illegally. Wang found that Li illegally crossed the border and immediately shot and seriously injured the other party, successfully stopping Li from illegally crossing the border, but the court ruled that Wang did not establish justifiable defense. The reason for the verdict is that although Wang's behavior was to protect social order, the means he took caused serious injuries. Compared with the general social interests such as crossing the border, it is obviously on the high side and beyond the reasonable limit, so it should not be considered as legitimate defense. I think this judgment is very reasonable, that is to say, the legal interests protected should be more important than the legal interests infringed.

(3) Emergency avoidance

Consistent with self-defense, I often come into contact with the concept of emergency avoidance when studying civil law. I won't elaborate here. The essence of self-defense is to oppose and suppress improper behavior with just behavior, and suppress injustice with justice, while emergency avoidance is to choose the lesser of two evils and sacrifice less justice in order to protect greater justice. Therefore, from this perspective, the requirement of emergency avoidance is far greater than self-defense. There is no need to have only one way to deal with legitimate defense when it is illegally infringed. Even if you can choose to escape, the obligee can choose to fight back against the infringer, but emergency avoidance is different. It strictly requires that this is the only way to solve the problem, and there is no other way. If there are other ways to minimize losses to achieve the same goal, then use this. This point should be strictly limited. Moreover, legitimate defense only requires that the legal interests protected are equal to or less than the infringed interests, and the interests of emergency hedging protection must be higher than the value of the infringed interests.

To protect a smaller interest and harm a larger interest is like throwing a watermelon and picking up sesame seeds, which is the most unacceptable and runs counter to the value system of the whole society. However, this has also triggered a classic case, that is, sailing in the sea and encountering a shipwreck, whether it is possible to kill the sick and dying people as food and save most of the remaining people waiting for successful rescue. From this point of view, this is completely legal, but according to the actual precedent and the explanation of Harvard University's open class, it is not possible to deprive others of their right to life through emergency avoidance. No one is above other people's lives.

Third, the reasons beyond laws and regulations.

(A), beyond the laws and regulations to prevent defects.

This is the focus of my thesis, because both self-defense and emergency avoidance are directly stipulated in the criminal law, so it is relatively strict, and the scope of application is very limited from five aspects: purpose, time, limit, object and subjective conditions.

However, legal acts, conflict of obligations, self-help acts, legitimate business acts and victim's commitment are more theoretical, and there is a greater demand for judges' discretion. It is not only easy to cause the deviation of fact finding, but also leads to misjudgment, from guilty to innocent, and from innocent to guilty. There are also great risks in sentencing and law application, and it is also easy for judges to bend the law. Therefore, I think it is absolutely necessary to incorporate the illegal obstacles outside these regulations into the criminal law and make them legal obstacles.

(2) Restrictions on behavior by laws and regulations

Behavior refers to the act of exercising rights, performing obligations or executing orders in accordance with effective laws and regulations. This kind of behavior may conform to some criminal characteristics in form, but it does not constitute a crime because it is carried out in accordance with laws and regulations and does not have illegality and social harm. For example, the police arrested the suspect, and the bailiff executed the prisoner according to the execution order signed by Dean the Supreme People's Court. On the surface, his behavior deprived the prisoner of his right to life, which is a form of intentional homicide, but because there are laws to follow, executing orders will not constitute a crime.

It should be noted here that this method must be a good one. Otherwise, it would be tantamount to admitting the excuses of German and Japanese war criminals during World War II. As soldiers, we only act according to the orders of the government, so killing civilians and waging war do not constitute crimes, at least individuals are not responsible. Moreover, we must pay attention to legal procedures when implementing laws and regulations. Take arresting suspects as an example. If you want to show an arrest warrant, you may also commit a crime. Otherwise, it will be difficult to guarantee the legitimate rights of citizens. If they live at home every day, they may be arrested and put in prison, making it difficult to stabilize society.

I have two views on legal acts. First, the law itself must be a good law, in line with the essential spirit of legal fairness and justice. Second, the person subjected to execution must act in strict accordance with the law, and cannot take revenge or express personal grievances with selfishness.

(3) restrictions on legitimate business practices

It should be said that martial arts and boxing are the most common forms of legitimate business activities. On the surface, boxers won't stop until they hit each other. According to the provisions of China's criminal law, anyone who intentionally hurts and causes minor injuries shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. The boxer's heavy punch is not just a minor injury. Sometimes, people are knocked unconscious, and serious injuries are inevitable. However, as long as the game is fair and legal, you can not pursue the criminal responsibility of the hitter, that is, the winner here. If this kind of sports competition is banned, then the audience will have one less wonderful program to watch.

However, some people make huge profits through the underground black boxing competition, which cannot be considered as a legitimate exemption, and it is not a legitimate business behavior at all. Even competitions that cover up illegal purposes in a legal form should be banned.

Moreover, if an athlete or player maliciously hurts others, fails to abide by the rules of the game, or skillfully uses loopholes in the rules of the game to cause injuries to others, he shall be investigated for criminal responsibility. I think there are many such situations in football matches. Some players are worried about the opponent's goal, or they have always held a grudge because they can't surpass each other. In the game, they fell to the ground maliciously and kicked others on purpose. This should not be considered as a legitimate business behavior, but a crime of intentional injury. Therefore, the referee is required to strictly control, and at the same time improve the quality of athletes and reduce the occurrence of such incidents. Otherwise, people say it wasn't intentional, because they accidentally mentioned others when playing football. I think this excuse is pale and powerless. Should not be identified.

(D) restrictions on self-help behavior

I think self-help behavior is similar to financial aid behavior in civil law. In criminal law, self-help behavior refers to the behavior that people whose legitimate rights and interests have been violated rely on their own strength to provide relief through legal procedures, but rely on state organs for irreparable or obviously irreparable. It is more common to rob people's backpacks. When criminals are about to flee to other places or destroy robbed goods, the victims can't get help from the relevant authorities, and they can use violence to get back their property or prevent others from destroying it.

In this process, because criminals will inevitably refuse to submit, some fights will inevitably occur, so it is likely to cause certain casualties in this process. Self-help behavior belongs to a category of justifiable defense, so there are strict restrictions, which is also the key difference between self-help behavior and justifiable defense. Self-defense means that self-help behavior requires that self-help behavior is in progress, but it is limited to the infringement of property. Even if the act has been completed, it is found on the spot and pursued at the same time. Only when the wrongdoer hides his property in a safe place can the pursuer apply self-defense. It can be seen that although justifiable defense is strictly applicable, it is more relaxed than self-help behavior.

But how to determine that the victim's behavior is self-help rather than revenge afterwards? Revenge afterwards is also achieved through violent means or other acts that infringe upon the legitimate interests of others. Self-help can easily be confused with revenge. What we should pay attention to here is whether we can only protect our legitimate interests through our own means, and it is too late or impossible for state organs to save themselves.

Because self-help behavior is a special manifestation of self-defense, what self-defense requires is also the requirement of self-help behavior. The most important thing is not to exceed a certain limit, just to protect your legitimate interests. Just get your own property back, and you can't continue to fight back against the infringer, because you can rely on state organs to investigate the responsibility in the future.

If you kill a criminal suspect for one or two hundred dollars, it should not be an act of self-help, because the values of the two are not equal at all and cannot be compared. This is where self-help behavior should be restricted. It is only required to use general social standards to identify ways to stop crimes and recover losses. In practice, if I want to defend this kind of problem, I draw a little conclusion from a case, that is, how to defend the behavior of killing or seriously injuring a suspect with hundreds of dollars. It is generally considered as self-defense. For example, Chen Mou robbed a taxi driver, stabbed him with a dagger, forcibly took 100 yuan, and then got off the bus and fled. The taxi driver started the car to catch up. After running 40 meters forward in Chen Mou, he was seriously injured and regained his property. If we think this is an act of self-help, then it is obviously beyond the necessary limit to seriously injure others for 100 yuan, and taxi drivers have to bear criminal responsibility. However, if drivers are not allowed to carry out this behavior, criminals will succeed. It's easiest to hit someone with a car at this time, and I think others will take this way. Since for property crimes, if the losses can be recovered on the spot, the parties are allowed to take justifiable defense, that is, the time of justifiable defense can be appropriately extended to explain the phenomenon of property crimes. We think it's self-defense. We can protect taxi drivers. As for whether a taxi driver should be protected, it depends on his subjective purpose, that is, to get his property back, and it should be recognized. If you want to kill someone, don't admit it. Criminal responsibility should also be investigated. However, the punishment should be lighter and mitigated.

(v) Restrictions on conflicts of obligations

Conflict of obligations refers to the situation that the actor has two or more incompatible obligations at the same time and has to perform other obligations in order to fulfill one of them.

I think this is similar to emergency hedging, but the conflict of obligations does not infringe on the interests of the legitimate third party, but protects the greater interests and does not protect the smaller interests. For example, the warehouse keeper did not stop the thief from stealing because of the fire in the warehouse, which obviously violated his duties and brought losses to the warehouse. But if the fire is allowed to spread, even if the thief is caught, the loss will be even greater, and the loss will outweigh the gain. It is also the lesser of the two evils. There must be two conditions. First, there must be two or more obligations at the same time. Second, the value of the obligation to protect is more important than the value of the obligation to give up.

In other words, if the manager chooses to chase thieves and give up fire fighting, then the consequences will be at his own risk. What I want to say here is that the administrator must find a fire. If he didn't know there was a fire, he would chase the thief. Even if there is a fire, this obligation has not been fulfilled, and the responsibility of the manager should not be investigated.

As for the severity of obligations, this should be analyzed in strict accordance with the universal values of society, and people's right to life and health must be greater than property rights. Don't choose to protect money instead of life just because some people regard money as life and think that you can't live without money and life is not as important as money. The most typical example is fire fighting in a fire. Knowing that the child was still sleeping in bed, he ran into the fire but moved out of a safe, resulting in the child not being evacuated in time and being buried in the sea of fire. This is absolutely inconsistent with the values of conflict of obligations. In practice, such parents are generally not investigated for criminal responsibility, but I think they should not be condemned only from the moral level, but should be classified as crimes of omission.

(6) Limited by the promised behavior of the obligee.

The main controversy on this issue lies in euthanasia, which is not recognized in China. Even if the euthanized person voluntarily accepts the death and signs a letter of guarantee to ensure that his death has nothing to do with the executed person, the other party does it in order to realize his wish. However, China's laws still need to investigate the criminal responsibility of the executor. Suspected of intentional homicide, because this promise itself is illegal, even your own life, you have no right to dispose of it, which violates public order and good customs, prohibitive laws and regulations and social interests. Generally limited to property rights.

I personally support euthanasia, because some people really live a life that is worse than death, lose their ability to work, drag down their families, and suffer from both mental and physical pressures. Living like this is a cruel state. If it is clear that they are willing to accept death, it should be recognized that it is unfair to pursue criminal responsibility for those who want to alleviate the suffering of their loved ones. The state should set up a special institution for euthanasia, and individuals are not allowed to do it. I believe it may change in the near future.

There is another problem here, that is, the promised person should be investigated for criminal responsibility for doing something beyond the promised scope. But what if the promised person goes back on his word? He was willing to let the actor cut off his finger, but later he refused for fear, but his finger was cut off before his remorse was expressed. In this case, should the perpetrator be held accountable? Similar to this commitment problem, it is still a commitment afterwards. If someone kidnapped a girl, the girl fell in love with him and wanted to marry him. It is said that she promised the man to kidnap him. This behavior obviously violates the prohibition of the law, connives at criminals, leads the country by the nose of the right of prosecution, and hinders the sanctity and authority of the state's public power. It should not be admitted, but it is clearly stipulated in theory that it is not allowed to promise afterwards, which is the time requirement for the obligee to promise.

Moreover, the victim can only promise personal legal interests, not the legal interests of the whole society. It is impossible for a person to replace the whole society, even if he is in a high position.

Third, how to limit the scope.

I have explained all the above seven legitimate reasons in detail. For self-defense and emergency avoidance, as long as it is handled in strict accordance with the law. Safety devices in self-defense should be installed in one's own home, which does not affect public safety and does little harm to human body, and special care should be given to lonely elderly people or single women living alone in remote areas. You can relax the requirements appropriately. And the safety device is installed in public places, which may pose a threat to the safety of public places and should be explicitly prohibited.

For the five legitimate reasons beyond the provisions, it should be clearly included in the criminal law category in the criminal law amendment, and each situation should be fixed through judicial interpretation, which not only meets the requirements of a legally prescribed punishment for a specified crime, but also gives citizens a guiding role, clarifies what to do and what not to do, conforms to people's expected possibilities, prevents people with ulterior motives from taking advantage of loopholes and reduces the tragedy of committing crimes because they don't understand the law.

Bibliography: General Theory of Criminal Law and Frontier of Judicial Practice in Peking University.