The law cannot make concessions to lawlessness. The "Guiding Opinions" clarify the applicable standards of the legitimate defense system
Interview with the relevant person in charge of the Research Office of the Supreme People's Procuratorate
Justifiable defense is a right granted to citizens by law and an important legal weapon in the fight against illegal behavior.
Since the implementation of the Criminal Law in 1997, people’s courts, people’s procuratorates, and public security organs at all levels have cooperated with each other to correctly and properly handle a large number of legitimate defense cases in accordance with the law, and have achieved good legal and social effects.
However, some cases have problems such as inaccurate grasp of the application of the legitimate defense system or even serious impropriety.
In order to actively respond to social concerns and vigorously promote the core socialist values, on September 3, the "Guiding Opinions of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on the Application of the Legal Defense System in Law" was officially released. The reporter specially interviewed related hot issues. Gao Jingfeng, Director of the Research Office of the Supreme People's Procuratorate.
Reporter: The "Guiding Opinions" emphasize that the legitimate defense system must be accurately applied in accordance with the law, encourage courage to do what is right, and promote social righteousness.
So, what are the provisions and considerations of the "Guiding Opinions" to encourage and protect behaviors that are justified?
Gao Jingfeng: Acting bravely for righteousness is a traditional virtue of the Chinese nation and a concrete manifestation of the core values of socialism. Public security organs, people's procuratorates, and people's courts must clearly provide legal protection for bravely acting for righteousness.
In recent years, the Supreme People’s Procuratorate has guided local procuratorial organs to handle the case of Fuzhou Zhaoyu’s justifiable defense, etc., to support and escort the brave actions of righteousness, and to create full justice for those who see righteousness and courage, which has been widely praised by the society.
The "Guiding Opinions" draws on the experience and practices of the procuratorial organs, and will encourage and protect the value orientation of acting bravely throughout the document.
For example, the "Guiding Opinions" make it clear in accurately grasping the causes and conditions of legitimate defense that illegal infringements include both illegal infringements against oneself, as well as illegal infringements against the state or public interest or against others.
Here, justified defense against acts that endanger the state and public interests or against illegal infringements of others is essentially just acting bravely.
For another example, the "Guiding Opinions" clearly enumerates two types of behaviors that are righteous and brave: for ongoing illegal and criminal acts such as pulling the steering wheel and beating the driver that hinder safe driving and endanger public safety, they can be defended.
Adults shall persuade and stop the illegal infringements by minors against other minors; if the persuasion and stop are invalid, they can be defended.
In addition, the "Guiding Opinions" fully consider the actual situation of righteousness and bravery in the specific application of excessive defense and special defense, to prevent being too harsh on those who are righteous and brave, to prevent the determination of acts of righteousness and bravery from being too strict, and to avoid "heroes bleeding and crying" .
In short, the series of regulations in the "Guiding Opinions" are conducive to encouraging people to fight against lawless elements, especially encouraging people to stand up for justice, and provide sufficient legal basis for practicing socialist core values.
Reporter: The "Guiding Opinions" stipulates: "The premise of legitimate defense is that there is illegal infringement. Illegal infringement includes both criminal and illegal acts. Illegal infringement should not be reduced to violence or criminal acts. For illegal restrictions on the person of others. Unlawful infringements such as freedom, illegal intrusion into other people’s houses, etc. can be defended." What are the considerations for this provision, is it possible to abuse the right of defense?
Gao Jingfeng: In judicial practice, the causes of legitimate defense cases are becoming more and more diverse.
For example, cases caused by illegal and criminal activities of pyramid schemes (such as the Shengchunping case in Zhejiang) are frequent and frequent. Some violent pyramid schemes wantonly commit crimes such as deliberate injury, illegal detention, robbery, rape, etc., causing serious harm to citizens’ personal and property rights. It has also become an important area where underworld crimes breed.
In addition, in many cases (such as the Laiyuan Anti-Killing Case and the Xingtai Dong Mingang Case), the illegal offenders first committed illegal acts of trespassing into other people's houses, which seriously damaged the safety of citizens' houses.
Therefore, in order to better reflect the original intent of the legislation and meet the needs of judicial practice, the "Guiding Opinions" believes that the "illegal infringement" in the cause of legitimate defense refers to the illegal infringement of all the legitimate rights and interests of the country and citizens protected by national laws. Improperly limiting interpretations, such as improperly limiting illegal infringements to violence or criminal acts, should be reasonably defined.
At the same time, in response to the prone situations in practice, the "Guiding Opinions" clearly enumerates illegal infringements such as illegal restrictions on the personal freedom of others, illegal intrusion into other people's houses, etc., which have strong pertinence and practical significance and help further enhance the people's sense of security. , To meet the rule of law needs of people in the new era.
It should be noted that this provision of the "Guiding Opinions" clarifies the causal conditions of legitimate defense, and the establishment of legitimate defense requires time, object, and intention conditions in addition to the causal conditions.
At the same time, the "Guiding Opinions" also clarified that for a significant and minor illegal infringement, if the perpetrator directly uses a method sufficient to cause serious injury or death to stop it when it is identifiable, it should not be regarded as a defensive behavior, that is, illegal infringement is required. There is urgency, and defensive behavior is necessary to avoid abuse of defense rights.
Therefore, there is no need to worry that this provision will lead to the abuse of defense rights in practice.
Reporter: We have noticed that judging whether defense "obviously exceeds the necessary limit" is an important criterion for distinguishing between legitimate defense and excessive defense, and it is also a major issue in many legitimate defense cases.
How does the "Guiding Opinions" grasp and consider this issue?
Gao Jingfeng: According to the provisions of the Criminal Law, the determination of excessive defense should meet the two conditions of "obviously exceeding the necessary limit" and "causing significant damage", and both are indispensable.
In contrast, the criteria for determining "causing significant damage" are relatively clear, while "obviously exceeding the necessary limit" can easily lead to differences in understanding and become the main issue of the case.
The Zhao Yu case in Fuzhou and the Sheng Chunping case in Zhejiang have different understandings and opinions on whether they "obviously exceed the necessary limit".
The "Guiding Opinions" emphasizes three criteria for judging this issue: one is to comprehensively consider, that is, to comprehensively consider the nature, means, intensity, degree of harm of the illegal infringement, and the timing, means, intensity, and consequences of the defense. ; The second is to take specific considerations, that is, to consider the comparison of forces between the two sides, based on the situation in which the defender is defending, and make judgments in conjunction with the general public perception; the third is to benefit the defender, that is, the defender should not be demanding The counterattack method and intensity of illegal infringement are basically equivalent, and it cannot be understood mechanically that the counterattack behavior and the illegal infringement behavior must be equal, and the intensity must be precise.
Only when the defensive behavior is very different from the illegal infringement and is obviously excessive, it is considered that the defense "obviously exceeds the necessary limit."
At the same time, when judging the degree of harm of an unlawful infringement, it is necessary to consider not only the damage that has been caused, but also the imminent danger and realistic possibility of causing further damage.
Reporter: In recent years, procuratorial organs have repeatedly emphasized the need to adhere to the rule of law that "the law cannot make concessions to lawlessness" in handling cases involving legitimate defense.
So, what are the considerations of the "Guiding Opinions" in adhering to the characteristics of "using right to wrong" to prevent degenerating into "violence with violence", and what rules have been designed?
Gao Jingfeng: The procuratorial organ emphasizes the need to adhere to the rule of law spirit of "the law cannot make concessions to lawlessness." The legal logic behind it lies in the fact that legitimate defense is to "use right to wrong" instead of "use violence to counter violence", which embodies that "justice is not going" "Injustice bow" value orientation.
To this end, the "Guiding Opinions" made various provisions to prevent the abuse and alienation of the right of defense: First, the general requirements emphasized the need to "accurately grasp the boundaries and prevent improper identification" and "to prevent illegal infringements in the name of defense." It is necessary to resolutely avoid identifying as justified defense or excessive defense"; the second is to emphasize in the specific application of justified defense, "Knowing that the offender is a person with no criminal capacity or a person with limited capacity for criminal responsibility, it should be used as much as possible "Other ways to avoid or stop infringements" "defensive provocations that deliberately use language, behavior, etc. to instigate the other party and then counterattack should not be regarded as defensive behaviors." The third is to accurately distinguish defensive behaviors and fighting with each other.
Both parties fighting each other are illegal in nature and are "fighting wrong with wrong". Although it is similar in form to the defensive behavior, it should not be regarded as a defensive behavior because the perpetrator has no defensive intent. The fourth is to prevent abuse of the right of defense. The act is deemed to be a defensive act. “The illegal infringement is caused by the perpetrator’s gross fault, and the perpetrator deliberately uses other means to avoid the infringement but still deliberately uses a method sufficient to cause serious injury or death to fight back. Defensive behavior".
The above-mentioned regulations are to protect the legitimate rights and interests of the legitimate defenders and the courage of justice while guiding the public to resolve trivial disputes in a legal, rational and peaceful manner, eliminate social hostility, and promote social harmony.
Reporter: In the next step, in what aspects of the work will the procuratorial organ implement the "Guiding Opinions" by performing its procuratorial functions?
Gao Jingfeng: As a national legal supervision agency, procuratorial organs must fully and fully perform their procuratorial functions to ensure the legally accurate identification and fair handling of legitimate defense cases. The focus includes the following tasks: First, intervene in investigations in advance to ensure the accuracy of the case.
The "Guiding Opinions" put forward clear requirements for public security organs to do well in the investigation and evidence collection of cases involving legitimate defense.
Procuratorial organs should be invited by the public security organs or proactively intervene in the investigation in advance, and share responsibility with the public security organs, cooperate with each other, check each other, give full play to their respective strengths, and reach an agreement at the first time, which is conducive to early identification of the investigation direction, comprehensive collection of fixed evidence, and ensuring the qualitative nature of the case deal with.
The accurate and accurate handling of the Kunshan "Long Ge" case is a good example; the second is to adhere to objectivity and justice, and correctly exercise the powers of review, approve, arrest, and review and prosecute in accordance with the law.
The "Guiding Opinions" require that, in accordance with the provisions of the Criminal Procedure Law, decisions on disapproval of arrest or prosecution shall be made in a timely manner for cases that are legally recognized as legitimate defense.
This requires procuratorial organs to adhere to an objective and impartial position. For cases that the public security organs request for arrest or transfer for review and prosecution, they should strictly control the conditions of arrest and prosecution, exclude external interference, and exercise their powers independently in accordance with the law; the third is to strengthen legal supervision and be brave to correct errors. .
The procuratorial organ shall exercise its functions and powers in accordance with law such as supervision of case filing, supervision of investigative activities, and trial supervision, and attach great importance to the defense or defense opinions of criminal suspects, defendants and their defenders on legitimate defense or excessive defense. Adopt or support in a timely manner, and protect the legal rights of the parties in accordance with the law; the fourth is to strengthen the interpretation of the law and the promotion of the rule of law.
Cases involving legitimate defense vary widely. Procuratorates should further strengthen the preparation and issuance of guiding cases or typical cases involving legitimate defense cases, and actively guide procuratorial agencies at all levels to grasp the essential characteristics of legitimate defense, clarify the legal basis, clarify legal boundaries, and correctly handle the legitimate To defend cases, to enhance the understanding and recognition of the parties and the public on the handling decisions of the procuratorial organs.