On the Right of Special Defense
|Keywords||the right of special defense legislative comparison applicable elements analysis of advantages and disadvantages measures for improvement|
A new provision concerning the right of special defense has been added to the amended Criminal Code in 1997,which has aroused controversies among criminal jurists. This article, through the analysis of section 3,article 20 of the new criminal code, deems that the appropriate title for this section is special defense. Then compared this section with ancient, modern, domestic and overseas statues concerned, the article elaborates the legislative history of the right of special defense. It puts its emphasis on what elements constitute special defense which shall apply if four elements could be demonstrated, that is foundation , time , object and subject. The article then lists criminal jurists’ opinions on this issue and analyses advantages and disadvantages of those opinions. And the article affirms their theoretical and practical values. On the other hand, it also states their defects. Finally, the article makes two suggestions for legislative improvement. One suggestion is to keep the provision of special defense under the present public security but to amend it. The other is to delete the section from the Criminal Code when public security turning well and to better the provision of defense.