With the release of the movie "20th"，"Fa cannot be concession" can be described as a household name。However, the origin of this proposition、Basic perspective and development process，I am afraid it is not known outside the criminal law industry。What is the difference between defense and emergency hedging? German scholar Berner raised this question and answered in his book。He pointed out，Emergency risk aversion is the opposition between positive (rights) and positive (rights); legitimate defense is the opposition between positive (law) and injustice (illegal)。So，During emergency helling，It can only sacrifice smaller rights to protect greater rights; in legitimate defense，Those who are illegal (hereinafter expressed as an infringement) are denying "positive"，So "positive" must fight with it，Advantages of defense are the right to opposite to illegal infringement。So，Bellner proposed the proposition "The law cannot be improvised" (also translated as "there is no need to make a concession")。

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Bellner Based on the proposition "Falun can not make a concession"，The following explanations of the establishment conditions and related issues of legitimate defense。(1) The premise of legitimate defense is illegal infringement，And the infringement must be sure。(2) The infringement must have the current sex，The danger is what is happening now。but，Affairs does not have to start，Just face it directly。Compared with the beginning of the waiting invasion, the invasion，Prior to the beginning of the initial infringement，Often is a more ideal legitimate Bet365 app download defense。Defenders think that there is the current danger，Can't lay the foundation for legitimate defense，But even if the defender has implemented the imaginary defense based on the wrong understanding of the wrong understanding，Not penalized。Due to the defenders' understanding of the dangerousness, but intentional，It is inevitable due to the errors of their understanding，Therefore, it also blocked the negligence。(3) The infringement must be illegal，If the infringer has the right to implement infringement，If you cannot make a legitimate defense。Based on this，In principle, citizen can not perform legitimate defense for government behavior，To judge、Police’s job behavior cannot be legitimate defense。(4) Defense behavior can target all illegal violations。illegal victims target the lives of others、Body、Freedom、Honorary and other rights to implement illegal violations，Defenders can use the violence of the opponent to defend; when illegal infringers implement illegal violations of property ownership，Defenders do not need to consider the value of property;，You can also use violence to kill the opponent。To protect the possession of property，Also can definitely carry out legitimate defense。Brief words，The degree of violence that can be used to defense，It is completely restricted by the right to defended rights。(5) Although the infringement of one party can perform legitimate defense，But you cannot easily perform legitimate defense when fighting each other。Generally speaking，I am responsible for being involved in the fight，The so -called defense behavior is just a continuation of fighting，Not a right defense;。(6) Just defense is not simply defense，but defense rights，Therefore，Bet365 app download It can be legitimate defense in order to protect the rights of others，instead of asking others to have a relative relationship with the defender。(7) Even if it can avoid illegal infringement，Can't give up legitimate defense right。"Article 140 of the Garolinna Code" stipulates，If the infringement is not so dangerous，When you can avoid infringement by escaping without damage to your reputation，Not established legitimate defense。But Berner thinks，This provision does not meet the basic propositions of "the law cannot make a concession in the wrong concession"，If "positive" needs to yield to "incorrect"，That is a kind of illegal。So，Even if you can escape easily，You cannot give up the right to justified defense。

Belner's point of view has a certain impact on Germany's later theories and jurisprudence of legitimate defense。From the perspective of the entire world，The legitimate defense right of Germany is very sharp，It is also very broad。The main manifestation as，Defenders have no obligation to retreat，As long as it is necessary to perform legitimate defense，Even if the protected legal benefits are quite mild，can also cause serious injuries and deaths from illegal infringeers。For example，The residential owner can assassinate the man who invades the house after the wine。Another example，If shot shooting is the only way to protect property，You can shoot to the escape thief，Even if people die, it is justified defense。Another example，To prevent the teenager from climbing to the tree to steal apples，Elderly people with inconvenient moves have no other ways and shoot at the teenager，What caused the death of teenagers，Propositions based on "the law cannot be concession cannot be concession"，can also be established in legitimate defense。

　　Social ethics restrictions of legitimate defense

Belner's view is not accepted by Germany's later theory and jurisprudence，German Criminal Law Theory later proposed to restrict social ethics for legitimate defense。(1) Rites defense of illegal infringement without responsibility shall be restricted;，If you are drunk and you caught up with illegal errors，Right defense should also be limited。(2) The illegal provocative behavior of the infringement has caused illegal violations，Just defense is restricted or negated。On the one hand，When the infringement intentionally provokes attacking and attacked，Just defense is denied; on the other hand，Interests (may not be intentional or overwhelmed) but have a responsible provocative occasion，Although the defense is not completely denied，But the legitimate scope of legitimate defense is limited。(3) In an occasion with illegal violations，Although the obligation to be required to be invaded or requested by a third party cannot be required to be rescued，But you cannot adopt a defensive method that is dangerous to life。For example，To prevent B from stealing a bottle of lemon juice，A Dingyi fired a deadly shot。Professor King Hedhozel made it clear: "Because B's life is significantly higher than that of a bottle of lemon juice，This，A can only adopt a more gentle defense or only to defense defense。""，The thief was stealing 10 Finni (German old currency unit，Equal to RMB 0.5) After escaping，Shooting at him with a perpetrator。Professor Rocksin thinks，The damage that the victim may suffer is minimal，Although there is still a proper defense right in principle，But it cannot be defensive by depriving the life of the invaders。"High importance of human life，Not allowed to kill or seriously hurt others for defense for minor bet365 best casino games attacks。"(4) In parent -child relationship、This relationship between couples lays the foundation internally internally internally internally infringement，Can't directly adopt a fatal defense method。For example，For normal husband and wife relationship，Most of them are required to be threatened to tolerate the victims，Avoid infringement as much as possible，In several defensive methods that can be selected，The most gentle means should be adopted，As long as it does not face more serious danger，Even if there is no more secure defense method，You should also give up the defense method of life -threatening life。Only when the husband intends to kill his wife，Only allows his wife to use defense methods that may cause fatal injuries to the husband's infringement。(5) The legitimate defense of the legitimate infringement through the coercion is limited，That is，If you do not limit the right to defensive rights if the threatened irritation is infringement，Allowers to kill people secretly killing the extorters in the occasion without other ways，It's inappropriate。

　　Thinking and questioning of legitimate defense

German legitimate defense theory is influenced by Kant philosophy。Kant advocates personal freedom and rights to be absolutely protected，Therefore，Urgent risk aversion to legitimate rights infringe on the rights of others，Therefore, it is illegal，It can only block the responsibility; the right defense is targeted at illegal infringement，So，Kant recognizes severe defense。Hegel thinks，The country is the existence of absolute rationality，Crime is the negation of the law，It is an absolutely invalid illegal; punishment is negative for negation，is the recovery of the law。The Hegel School is based on Hegel's concept bet365 best casino games of punishment.，The concept of "positive" is not affected by "incorrect"。Among them, the most typical is the proposition that Bellner put forward in 1848。Another example，LEVITA (Levita) also said，The law is a kind of existence that must not be given up，Illegal is a completely invalid existence，Proper defense is an important system that confirms illegal is completely invalid。The principle of confirmation of the method is the theory formed on this basis。

but，How should you understand and use the proposition "the law cannot be concession"，It is not unquestionable。For example，The "law" is the specific legal status of the infringement or the right to the law? then，From what angle to understand "the law cannot be improvised to the wrong" is uncertain。Some scholars abroad proposed，If you understand the "law" in the "law cannot be concession" as the right of the victim，It means that the rights of the infringement are absolutely superior to the rights of illegal infringers，instead of the principle of confirmed by method。4579_4603，Just the defense confirmed that the public law benefits of the order of law。If the interests of the legal order confirmed, this interest, plus the interest of the attacker is superior to the interests of the infringer，People have to ask，How can the French order itself become the protection of legal benefits of legitimate defense? Law confirm or defend the order of the law，Does it mean to defend all laws including legitimate defense? If you are sure to answer this，The legal order of legitimate defense is repeatedly calculated;，It is difficult to explain why the legitimate defense confirms the law of law other than just defense，Performing the legitimate defense itself? also，How to understand the "concession" is not doubt。

In short，In the general Bet365 app download sense,，The proposition of "the law cannot be concession" can not only be accepted by people，and will encourage people's hearts。From the perspective of criminal law，Especially for minor illegal violations，Can you and how to use this proposition to guide the identification of legitimate defense，You need to study。

　　(The author is a professor at the School of Law of Tsinghua University)