| Whether the measurement of interests should be taken into account in the determination of the limit of defense has always been a controversial issue. It is not reasonable to deny the measurement of interests on ground of "legal confirmation" and "individual right protection". The jurisprudential basis of legality of defense and the judgment of its limit are issues at two different levels and should be treated differently. According to the constitutional provisions on the citizen's right to equality, the measurement of interests in the determination of the limit of defense is necessary. Whether the defensive behavior is excessive or not should be investigated according to the two criteria of "whether the defensive measures are the minimum method to stop the unlawful attack" and "whether the interests are unbalanced". In order to determine whether interests are balanced, not only the status of legal interests, which is the core factor, but also the corresponding reasons for the status of specific legal interests should be taken into account. Apart from that, there is no need to set any exception to the rule of judgment on the limit of defensive behavior. Since the actor in the case of excessive defense has a subjective intention against unlawful act, what he has done should not be regarded as deliberate offence as defined in Article 14 of Chinese Criminal Law. Therefore, under specific circumstances, the punishment standard for negligent crime as well as the exemption clause in Article 20 Paragraph 2 of Chinese Criminal Law can be applied by analogy to those whose acts have constituted excessive defensive. |
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