Make legitimate defensive behavior more confident
The First Department of the Two High Schools made comprehensive and systematic regulations on the legal application of the legitimate defense system
● Regarding issues such as the establishment standards of legitimate defense and the identification of excessive defenses, both practical and academic circles have always kept strict checks, and the phenomenon of judicial alienation within the limits of legitimate defense has long existed
● Whether the defense "obviously exceeds the necessary limit", the nature, means, degree of harm of the illegal infringement, the timing, means, intensity, and consequences of the defense should be considered comprehensively, the strength of the two parties should be considered, and the specific case and the general public opinion should be considered. Know to make judgments
● It is necessary to accurately understand and grasp the legal provisions and legislative spirit of legitimate defense, and resolutely identify those that meet the conditions for the establishment of legitimate defense; it is necessary to effectively prevent the wrong practices of "who can make trouble," and "whoever is killed or injured", and resolutely defend. The spirit of the rule of law that law cannot make concessions to lawlessness
□ reporter Wang Yang
□ Our newspaper trainee reporter Bai Chuxuan
On September 3, the Supreme People’s Court, the Supreme People’s Procuratorate, and the Ministry of Public Security jointly issued the "Guiding Opinions on the Application of the Rightful Defense System in Law" (hereinafter referred to as the "Guiding Opinions") and typical cases. There are three major areas of work requirements, and more comprehensive and systematic provisions have been made for the accurate application of the legitimate defense system in accordance with the law.
Ten days later, the official Weibo of the Nan'an Branch of the Chongqing Municipal Public Security Bureau issued a police report stating that in the much-watched “hawker hacking the urban management” incident, the stall owner Yang used a knife to injure the urban management member Yang Qiao as a legitimate defense. .
Some experts told reporters of "Rules of Law Daily" that the release of the "Guiding Opinions" is a response to hot social events in recent years and reflects the practical concerns of the law.
Regarding issues such as the establishment standards of justifiable defense and the identification of excessive defense, both practical and academic circles have been strict in their checks, and the phenomenon of judicial alienation within the limits of justified defense has long existed.
In judicial practice, the handling of individual legitimate defense cases seems to be based on the law, but the result is not recognized by the society. An important reason is that the case handlers did not fully consider common sense and common conditions, which led to the understanding and application of the law and the people. The general perception of fairness and justice by the masses is biased.
The "Guiding Opinions" detailed the overall requirements and specific applications of the legitimate defense system, ensuring that the handling of cases conforms to the people's concept of fairness and justice, and truly achieving the organic unity of legal and social effects.
Involving legitimate defense cases
Has repeatedly attracted social attention
Justifiable defense is a right granted to citizens by law and an important legal weapon in the fight against illegal behavior.
However, justifiable defense, as a statutory illegal deterrent reason, is not satisfactory in judicial practice.
In recent years, with the development of the Internet, a series of cases involving legitimate defense have been reported by the media and have aroused heated discussions in the community. The boundaries of legitimate defense, whether it is illegal to act on the ground, whether self-defense and anti-killing are illegal, and other topics involving legitimate defense, often arouse public collective thinking. .
The "Mother Humiliating Murder Case" of Yu Huan in 2016 was a typical case. The dust settled in the heated public opinion and was selected as one of the "Top Ten Cases of Promoting the Rule of Law in 2017".
On April 14, 2016, female entrepreneur Su Yinxia was abused by 11 debt collectors including Du Zhihao for an hour. Du Zhihao took off her pants and used extreme methods to insult Su Yinxia in front of Su Yinxia's son Yu Huan.
22-year-old Yu Huan took out a fruit knife and stabbed 4 people indiscriminately.
Du Zhihao, who was stabbed, drove to a doctor by himself, but died of shock due to excessive blood loss.
On February 17, 2017, the Liaocheng Intermediate People's Court of Shandong Province was sentenced to life imprisonment for intentional injury, deprived of political rights for life, and assumed corresponding civil compensation liabilities.
The details of the case and the first-instance judgment were reported by the media, which caused huge controversy.
On March 26, the Supreme Procuratorate’s working group and the Shandong Provincial Procuratorate’s task force went to the local area to investigate and concluded that the Liaocheng People’s Procuratorate’s indictment and the Liaocheng Intermediate People’s Court’s first-instance verdict found facts and circumstances incomplete, which intensified the cause of the case and the conflicts between the parties The process and the specific violations of the debt collectors were found to be omitted in the first instance; Yu Huan's behavior was defensive in nature, and neither the indictment nor the first-instance verdict confirmed this, and the applicable law was indeed wrong.
On May 27, 2017, the Shandong Higher People's Court opened a second instance to hear the case of Yu Huan's intentional injury.
On June 23, the Shandong Higher People's Court revoked the first-instance verdict, convicted Yu Huan of intentional injury and sentenced him to five years in prison.
Like the "Mother Humiliating Murder Case," the "Kunshan Longge Case", the "Hebei Laiyuan Anti-Killing", the "Xingtai Dong Mingang Anti-Killing", and the "Yunnan Tangxue Case" all aroused strong responses.
Take the "Kunshan Longge Case" as an example. On the evening of August 27, 2018, Liu, known as "Kunshan Longge," and a passerby Yu had a conflict. Liu wanted to kill but was killed.
After the on-site surveillance video came out, it received a lot of attention on the Internet, and netizens debated whether it constituted a legitimate defense.
After the official Weibo @昆山公安 of the Kunshan Public Security Bureau of Jiangsu Province released the police report on the case, the number of likes reached 460,000, the number of reposts reached 150,000, and the number of comments reached 100,000.
In fact, my country's legal provisions on legitimate defense have long existed.
Article 17 of the Criminal Law promulgated in July 1979 stipulated the system of legitimate defense, “in order to protect the public interest, the personal and other rights of oneself or others from ongoing unlawful infringements, acts of legitimate defense taken shall not be liable for criminal Liability. If legitimate defense exceeds the necessary limit and causes undue harm, criminal responsibility shall be borne; however, punishment shall be mitigated or exempted as appropriate.”
Article 20 of the Criminal Law revised in March 1997 adjusted Article 17 of the 1979 Criminal Law, relaxing the limits of justified defense, and changing the standard of excessive defense from "exceeding the necessary limit to cause undue damage." Amended to "obviously exceed the necessary limit and cause significant damage" and add "special defense": "To take defensive actions against ongoing assaults, murders, robberies, rapes, kidnappings, and other violent crimes that seriously endanger personal safety, causing unlawful offenses. Casualties are not considered excessive defense and shall not be held criminally responsible."
On December 18, 2018, the Supreme People’s Procuratorate issued the twelfth batch of guiding cases, four guiding cases including the Chen Justifiable Defense Case, which further clarified the limits of legitimate defense.
Application of the legitimate defense system
Judicial practice is too strict
On May 17, 2019, when Jiang Mou, a student under the age of 15 from Jishou No. 2 Middle School in Hunan Province, was beaten by 15 students of the same age from the same school, he took out a pre-prepared folding knife from his sleeve and swung it wildly, causing two serious injuries. In second grade, one person was slightly injured.
Later Jiang was detained by the police on suspicion of intentional injury, and the prosecutor prosecuted him for intentional injury.
On July 6, 2020, the People’s Court of Jishou City, Hunan Province classified it as a campus violence case. The first-instance judgment found that Jiang Hua constituted a legitimate defense. The public prosecutor accused Jiang Hua of intentional injury and sentenced Jiang Hua not guilty.
But then, Jishou City People's Procuratorate filed a protest against Xiangxi Intermediate Court.
Hu Gongqun, a legislative consultant to the Standing Committee of the Beijing Municipal People’s Congress, told the reporter of the Rule of Law Daily that the 1997 amendment of the Criminal Law aimed at relaxing the establishment standards of legitimate defense and correcting the excessively strict grasp of the limits of legitimate defense in judicial practice.
"In judicial practice, legitimate defense in many cases has been declared to be excessive, which has made legislators’ good expectations of setting up a legitimate defense system fail. A large number of cases that should have been legitimate defenses have been identified as deliberate injury or deliberate homicide. The defense system has not played its due role. Instead, the enthusiasm of the masses of people who are trying to protect themselves and others' legitimate rights are restricted, and the judicial system has restricted the application space of the legitimate defense system."
Some scholars used "legitimate defense" as the key word and searched from high to low on the China Judgment Documents website, selecting the top 20 criminal judgments each year as a sample. From 1999 to 2018, the court identified criminal judgments as legitimate defense. The number was 0, and the number of criminal judgments deemed to be excessive was 38.
The 38 judgments found that the reasons for excessive defense can be roughly summarized into two categories.
The first type is result-only. The judgment does not consider whether the act is necessary to stop the illegal infringement, and it determines that the defense is excessive based on the seriousness of the result of the defense behavior.
Type two is concerned with the necessity of defensive behavior but the standards are chaotic.
When judging whether defensive behavior is necessary, five cases consider the imminent danger of illegal infringement, two cases compare illegal infringements and defensive behaviors, six cases focus on the location and intensity of the attack, and two cases believe that there is a lighter Way of defense.
On September 3 this year, Jiang Qibo, director of the Research Office of the Supreme People’s Court, stated at a press conference on the “Guiding Opinions” that since the implementation of the Criminal Law in 1997, people’s courts, people’s procuratorates and public security organs at all levels have followed the revised Criminal Law to comply with the law, A large number of related cases were properly handled, and generally good legal and social effects were achieved.
However, in some cases, the application of the legitimate defense system also has problems such as too strict or even serious impropriety.
Guo Zeqiang, a professor at Zhongnan University of Economics and Law, believes that legitimate defense originates from the defensive instinct of human beings. Modern countries generally stipulate a system of legitimate defense, emphasizing that legitimate defense is one of the natural human rights.
However, since the previous application of the legitimate defense system was too strict or even seriously improper, the provisions on legitimate defense were once called the "sleeping clause."
To encourage citizens to fight against unlawful infringements, it is necessary to activate the application of the legitimate defense system, so that the "hands and feet" of legitimate defense that have been restrained for a long time can be stretched, so that legitimate defense behaviors can be more confident.
Resolutely defend the spirit of the rule of law
Legal defense
On September 7 this year, when the Urban Management Law Enforcement Brigade of Tushan Town, Nan'an District, Chongqing City was carrying out the law enforcement of the city appearance and environmental improvement, the fruit stall owner Yang occupied the road, and the urban management team carried the objects occupying the road into the store and ordered him not to occupy the road. .
Yang was dissatisfied, so he had a dispute with the urban management team members, and smashed the fruit basket in front of the urban management team members, causing the urban management team member Yang Bridge to scratch his right hand by the fruit basket.
Subsequently, Yang Qiao and Yang had a quarrel, and they lost control of their emotions and went forward to chase Yang.
Yang grabbed the watermelon knife in the store and waved it while hiding, causing Yang Qiao’s left hand to cut multiple tendons and nerve ruptures.
After the incident, the public security organs, after a comprehensive investigation and collection of evidence, have found that Yang’s behavior constituted an obstruction to the execution of official duties, and was given a warning and punishment in accordance with the Public Security Administration Penalty Law.
The act of injuring Yang Bridge by swinging a knife while being chased by Yang was a legitimate defense.
Yang Mouqiao’s behavior constituted assault on others and was administratively detained in accordance with the Public Security Administration Punishment Law.
"In fact, influenced by traditional culture, the concepts of'killing for the dead and killing for life' are deeply ingrained in our country." Zhang Yunshu, a professor at the Law School of Anhui University of Finance and Economics, told reporters. For this reason, the "Guiding Opinions" clearly pointed out that it is necessary to accurately understand and Grasp the legal provisions and legislative spirit of legitimate defense, and resolutely identify those that meet the conditions for the establishment of legitimate defense in accordance with the law; we must effectively prevent the wrong practices of "who can make trouble," "whoever is killed or injured," and firmly defend "the law cannot make concessions to lawlessness" "The spirit of the rule of law.
On March 3, 2019, the People's Procuratorate of Baoding City, Hebei Province issued a notice to report the situation of the "Hebei Laiyuan Anti-Killing Case" that has received social attention. It determined that Wang Xinyuan and Zhao Yinzhi's actions were legitimate defenses and decided not to prosecute.
At the two sessions that year, legitimate defense was heatedly discussed by representatives of the National People's Congress, experts and scholars.
Shang Lunsheng, representative of the National People's Congress and president of the Gansu Lawyers Association, suggested that the Standing Committee of the National People's Congress should make legislative explanations on legitimate defense and respond to social concerns.
For the legislative interpretation of Article 20 of the Criminal Law, the effective determination rules for legitimate defense cases should be refined, including the determination rules for "property", the determination rules for the "progress" of the injurious behavior, and the determination rules for whether the defense behavior "obviously exceeds the necessary limit" Wait.
This time, the third part of the "Guiding Opinions" clarified the determination of excessive defense: whether the defense "obviously exceeds the necessary limit", the nature, means, degree of harm and the timing, means, intensity, and damage of the defense should be considered comprehensively. Consequences and other plots, considering the strength of the two parties, combined with the specific case and the general public perception to make judgments.
On May 25 this year, Zhou Qiang, President of the Supreme People's Court, and Zhang Jun, Chief Prosecutor of the Supreme People's Procuratorate, responded to the "Two Highs" report in response to the "righteousness" and "legitimate defense" cases that have received high social attention in recent years.
According to the work report of the Supreme People’s Court, in 2019, the People’s Court tried the “Sudden Death Case of the Elderly and the Child Colliding and Leaving”, and ruled that the blocker was not responsible and encouraged to act bravely; the trial of the “Patient Flying Kick Doctor’s Anti-Injury Case” changed the sentence to the doctor. For legitimate defense, resolutely say no to "he thin mud"; trial the "thief escaping and jumping into a river and drowning case", ruled in accordance with the law that it is not responsible for chasing the masses, and declared that the law does not impose excessive duty of care on those who demand justice.
The People’s Court has tried a series of cases to solve the legal and moral hazards that have plagued the masses for a long time: "Whoever can make trouble is justified", "whoever is ruthless is justified", "who is injured is justified" and other "conciliation" practices, so that justice has power, right and wrong, and warmth, so that the masses are warm, followed, and guaranteed.
The work report of the Supreme People’s Procuratorate shows that in the past year, procuratorial organs have guided the concept of the rule of law in society based on handling cases, and guided local procuratorial organs to investigate the Laiyuan Anti-Killing Case, Xingtai Dong Mingang Case, Hangzhou Shengchunping Case, Lijiang Tangxue Case and other influential defense cases Facts, to recognize legitimate defense in accordance with the law, lead and reshape the concept of legitimate defense, and let the concept of "the law cannot make concessions to lawlessness" deeply rooted in the hearts of the people.
Cartography/Li Xiaojun