The Judicial Judgement of Temporal Conditions for Legitimate Defense

Misjudgments regarding the temporal conditions for legitimate defense have long existed in judicial practice. Fundamentally, errors in determining the starting point of defense stem from the improper assessment of the danger posed by unlawful attack. Deviations in identifying the endpoint, by contrast, arise from insufficient holistic analysis of case circumstances by judicial authorities. A problem-oriented approach to rectifying these temporal determinations calls for establishing two critical junctures. Specifically, the defense should be deemed to commence when unlawful attack poses a possibility of actual harm, and to conclude when the danger is completely neutralized. To this end, the dangerous act theory should be adopted for determining the starting point of defense, supported by a danger assessment mechanism grounded in representative cases. As for the endpoint, the danger-elimination theory should be applied, which necessitates a holistic analysis of the timing, conduct, and overall impact of the unlawful attack.