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Research on the judicial Application of Legitimate Defense in China

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学术界 2019年第4期 190-204页

作者： Peng Xinlin Dang Heping College for Criminal Law Science Beijing Normal UniversityBeijing100875 School of Humanities and Social Science The Chinese University of Hong KongShenzhen518172

Legitimate defense plays an important role in curbing crimes,maintaining public order and fostering good moral *** China’s judicial practice,cases on legitimate defense raised several controversies on the nature of legitimate defense,limits of excessive defense and the applicable objects and definition of special *** nature of legitimate defense mainly involves defense intention,defense object,defense time and other *** defense intention is an important sign to differ the legitimate defense from the illegitimate *** object of legitimate defense can only be the unlawful infringer and the actor can only prevent the ongoing illegal *** existence of unlawful infringement of reality is a prerequisite for legitimate defense to be *** unlawful infringement that is justified by defense should be illegal,invasive,urgency and *** an unlawful infringement,the excessive defense needs to be distinguished from the legitimate defense in terms of the defense *** for the “necessary limit”,in principle,it means the necessary defense can stop the present unlawful infringement,and there is an obvious difference between the illegitimate defense and legitimate defense in terms of the means of the actor and the intensity of *** behavior shall be treated as excessive defense only if it “obviously exceeds necessary limit” and “cause great harm” at the same *** key to apply the special defense lies in the accurate understanding of the applicable object of special defense,that is,special defense can only be applied to “ongoing physical assault,murder,robbery,rape,kidnap and other violent crimes that seriously endanger personal safety”.

关键词： legitimate defense excessive defense special defense judicial application

FOCUSING ON judicial REFORM AND HOTSPOTS OF PRACTICE:ACADEMIC SUMMARY OF CRIMINAL PROCEDURE LAW IN 2015

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China Legal Science 2016年第4期4卷 142-160页

作者：罗海敏 Ma Jing(译) Robert D.Roderick(审校) "2011 Plan"China Collaborative Innovation Center of judicial Civilization and China University of Political Science and Law Procedural Law Research Institute China Association of Criminal Procedure Law 不详

2015 is the year of pushing the new round of judicial reform into depth,and also the third year of the implementation of the revised Criminal Procedure Law in *** of criminal procedural law focus on the central tasks ... 详细信息

关键词： judicial 刑事诉讼法学 responsibility legal proof necessity revised doubt proceedings holds

INTERACTIONS BETWEEN NATIONAL judicial PRACTICE AND SUPRANATIONAL LEGAL VALUES:REFLECTIONS ON CHINA'S EVIDENCE LEGISLATION DEVELOPMENT

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China Legal Science 2014年第6期2卷 118-141页

作者：汪诸豪李嘉 Institute of Evidence Law and Forensic Science of China University of Political Science and Law Indiana University Maurer School of Law

Like other civil law countries,China does not have an evidence *** evidence rules are scattered among respective procedural *** the beginning of this century,Chinese scholars and practitioners have engaged in a movement toward specialized evidence *** this movement,a good number of judicial interpretations,amendments to existing procedural laws,and experimental drafts

关键词： legal judicial 证据立法 specialized civil engaged globalization scattered beginning 司法实践

MODES OF judicial DEMOCRACY AND THE PERSPECTIVE OF CHINA'S ASSESSOR SYSTEM

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China Legal Science 2016年第1期4卷 26-53页

作者：王德新 Shandong Normal University School of Law

The practice of lay participation in trial court exists in most countries in the ***,there are also some significant differences in its formation of background,functional value and development trend in different countries,thus different operation modes were *** studying the different typical modes,we can find that they all based on the Principle of People's Sovereignty and the spirit of judicial *** China,the lay participation in trial court system is *** China's People's Assessor System originated in the judicial practice during the period of the New Democratic Revolution,but it has not been institutionalized and standardized in nationwide until the 1980 ***,the implementation effect of China's People's Assessor System in judicial practice is not very satisfactory,not only that,it has aroused intense debate on the abolition or completion of the *** the perspective of the People's Assessor System,we must reform it on the basis of China's practical needs.A series of measures should be taken in the reform,including enlarging the number of assessors in the collegiate panel,reasonably narrowing the scope of the use of assessors,establishing or perfecting support mechanism and other relevant *** of these reform measures should be served for the ultimate goal of China's current judicial reform,including developing the people's democracy,safeguarding the people's rights,safeguarding the impartial justice and enhancing the judicial credibility.

关键词： judicial 人民陪审员制度司法民主 democracy participation court legal 司法公信力 political professional

PRIVATE ENFORCEMENT OF CHINESE COMPANY LAW:SHAREHOLDER LITIGATION AND judicial DISCRETION

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China Legal Science 2016年第3期4卷 73-97页

作者：林少伟 Southwest University of Political Science and Law

Given the short history of Chinese Company Law, it is understandable that there are certain drawbacks in it. However, with the increasing number of cases, the private enforcement of Company Law witnesses fast development, which challenges the orthodox impression of the Chinese that Confucians who are unwilling to settle disputes through litigations. It also indicates that the Chinese courts are gaining more experience in dealing with corporate cases, which contradicts with the traditional view that Chinese judges are not capable of handling high-tech cases. The case study of derivative actions also demonstrates that judges are increasingly competent in adjudicating commercial cases. Nevertheless, considering the fact that the effectiveness of Company Law depends on its implementation,judicial discretion should be restricted to certain areas and should be operated under specific principles. It is expected that the private enforcement of Chinese Company Law will remain booming with the current economic growth and that judicial discretion will become increasingly important in this field.

关键词：派生诉讼 enforcement judicial 纠纷数量 private legal derivative court request companies

The Determination of Excessive Defense by judicial Practice and Its Rethinking——Based on an Analysis of 722 Criminal Judgments

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Contemporary Social Sciences 2019年第1期4卷 38-64页

作者： Yin Ziwen Fei Yang(译) School of Law Tsinghua University 不详

Concerning the determination of excessive defense,the main problems are the judicial practice of determining excessive defense only based on the resul of harm inflicted on a perpetrator;identifying excessive harm generally as an intentional crime;limiting the scope of exemption from punishmen of excessive defense relatively narrowly as well as repeated appraisals and indirect *** the improvement of judicial determination of excessive defense,the following efforts should be ***,from the perspective of ex ante,determining the necessary limits as the standard of whether the act of defense was necessary to stop unlawful infringement Second,paying due attention to the influence of the awareness of defense on the form of culpability and in general circumstances determining excessive defense as a negligent ***,giving sufficient consideration of the extent to which the possibility of anticipation decreased when the defender was faced with unlawful infringement and expanding the scope of exemption from punishment for excessive ***,avoiding repeated appraisals and indirect punishments by analyzing the factual grounds and essentia foundations of the circumstances of lesser or greater punishments.

关键词： excessive defense determination by judicial practice necessary limits awareness of defense deductions and exemptions from punishment

VALUE ORIENTATION OF judicial TRANSPARENCY AND POSSIBILITIES OF ITS REALIZATION

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China Legal Science 2016年第1期4卷 107-120页

作者：辛冠男 Business School of China University of Political Science and Law

Nowadays,the biggest difficulties the courts faced are as follows:the trial procedures and court verdicts’being not accepted by the litigants or the society,the absence of final judgments from final trials,the litigants’constant complaints by letters and visits or badgering as well as huge mental pressure on the *** various reasons,like certain

关键词：价值取向 judicial 司法公开 justice court transparency letters legal faced fairness

Local Courts as Legislators?judicial Lawmaking by Sub-National Courts in China

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中山大学法律评论 2014年第3期12卷 189-216页

作者：习超 Faculty of Law The Chinese University of Hong Kong Chinese Law Program Hong Kong Institute of Abia-Pacific Studies CUHK

Introduction:Statute Law and Judge-Made Law through the Comparative Lens The relationship between the roles of the legislature and of the judiciary in the development of law in a legal system is a subject of enduring *** traditional comparative law scholarship regards the different relationship between statute law and judge-made law,and in particular the different role of the judge,as ones of the"characteristic differences"between the common law and the civil law traditions.[2]In the conventional view,civil law is mostly a codified system where the role of the judge is primarily to interpret and apply a written body of statutes,whereas common law is made and developed in

关键词： legal judicial judge civil Judge corporation inter

Thoughts on the judicial Credit Constraints and Countermeasures

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The Journal of Human Rights 2019年第2期18卷 178-189页

作者：栗燕杰 Institute of Law Chinese Academy of Social Sciences

judicial credit is closely correlated with the relief dimensions of human *** judicial credit has become an important task of China’s judicial reform and also an important aspect ofpromoting the protection of human rights by the rule of ***,to judge the current situation of the judicial credit of people’s courts in a scientific way,find out the existing problems and provide suggestions on targeted measures have become a fundamental topic that combines both theoretical direction and practical *** on the analysis on the connotation of judicial credit,we make a study on courts’ own factors,awareness of the public towards rule of law,news media communication and other factors that constrain judicial credit,and propose suggestions on how to improve judicial credit.

关键词： judicial credit judicial act judicial service protection of rights