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The third paragraph of the penal code of twentieth theoretical inquiry

Author: LiWei
Tutor: ZhangShaoYan
School: Graduate School of the Chinese Academy of Social Sciences
Course: Legal
Keywords: Justifiable denfense The unlimited defense The special defense Terms of note
CLC: D924.1
Type: Master's thesis
Year: 2013
Downloads: 30
Quote: 0
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Abstract


The addition of the provisions of paragraph3, Article20in1997CriminalCode has led to the dispute about the legal attribute of the special defense rightand unlimited defense right among criminal law scholars. A consensus on theattribute of the provisions has not been able to be reached in academia, andtheoretical divergence also led to difficulties in the operation of the judicialpractice. In many cases, the judiciary may not invoke this provision to analyze andreferee the nature of the defense behavior in causing death cases, which led to theresult that the value of this provision has not been fully realized.This paper attempts to explore the attribute of the paragraph3, Article20in1997Criminal Code from the perspective of legislative purpose and value of theprovisions.The first part of paper is legislative review.Based on analysis of the legislativeprocess of this provison, this part attempts to explore legislative purpose andlegislative value of the provison and lay the foundation for the theoretical analysisof the provision. The second part is the core of this paper, that is the systematicanalysis of the attribute of paragraph3which has been disputed among thetheorists. In the author’s view, this paragraph is an attention provision, whichmakes corresponding prompt to the general provisions of self-defense system inparagraph1，so that the judiciary will be able to evaluate the behavior natureaccurately when facing defense against death cases. The third part is specificinterpretation of paragraph3, namely, based on the second part which sort out therelation between paragraph1and3of Article20in the Criminal Code, theprovisions of paragraph3should adhere to the basic requirements of paragraph1.And on the basis of above-mentioned, this part gives a systematic analysis on theconstitutive elements from six aspects.This article is innovative in the following areas: The author clarifies thelegislative purpose and legislative value of paragraph3, Article20of1997Criminal Code. In this process, the more innovative part of is that, the authorchooses to make an analysis on three theories which has been long debated inacademia, that is "unlimited defense theory,"“special defense theory” and “general defense theory”. On this basis, from the logical relationship between theparagraphs of this article, the legislative purpose and legislative value, the authorgets the conclusion that paragraph3is an attention provision, and gives a specificinterpretaion on this paragraph from aspects of the causes conditions, timeconditions, subjective conditions, subject conditions, limits conditions and defensesubjects, which provides standardized anotation and discription for judicialapplication, improve the unity and effectiveness of the judicial application, and atthe same time provides a reference for future legislation.

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