Abstract
Abstract
This present study dealt with the subject of an exceptional criminal right aimed at legitimate defense against any attack that meets its conditions. The study also aimed to address the topic by clarifying the concept of legitimate defense and its legal model as well as clarifying the impact resulting from the use of the right of legitimate defense. Then, the study aimed to show forms of bypassing the right of legitimate defense and the criminal liability resulting from it in both Palestinian and Jordanian legislations. The descriptive, analytical and comparative approach was adopted to clarify the research topic.
The present study came up with many results including: the act of defense injures the right of others unintentionally, such as a mistake committed by the person or not causing injury leads to one verdict. This verdict is the permissibility of the act as long as the aggressor does not commit an unintentional mistake, and then making the necessary care so as not to injure anyone other than the aggressor.
The research also came up with some recommendations including: the necessity of avoiding the clear contradiction in the text of Article (3/60) of the Palestinian Penal Code following the Jordanian legislator steps, as it referred the rule of transgression in legitimate defense to the text of Article (89) of the same law. As we explained, the essence of proportionality is the use of excessive force by the defender more than that necessary to repel the attack. Moreover, Article (89), which spoke about the state of necessity, stipulated that there must be a balance between the act of danger and the act of defense in order for it to be applied. Therefore, there it is impossible to apply it in case a violation of legitimate defense occurs.
Keywords: defender, aggression, defense, transgression, others
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