"Article 20" Hits Legal experts explain how to apply legitimate defense

　　The currently being screened Spring Festival movie "Article 20" is the first domestic law-themed film focusing on the issue of "justifiable defense". Recently, our reporters invited legal experts and prosecutors to answer questions raised by viewers——

How self-defense applies

　　Single pigeon Liu Tingting

　　Zhang Jianwei

　　Professor and doctoral supervisor, Tsinghua University Law School

　　Zhou Huiyong

　　Deputy Director of the First Procuratorate of the Supreme People's Procuratorate

　　Tan Peng

　　Full-time member of the Procuratorial Committee of the People's Procuratorate of Shaanxi Province

　　Wang Yong

　　Deputy Procurator-General, People’s Procuratorate of Suzhou City, Jiangsu Province

　　"The law makes it more costly for bad people to commit crimes, but it is more costly for good people to take action!" The currently being screened Spring Festival movie "Article 20" is the first domestic law-themed film focusing on the issue of "justifiable defense". From an artistic perspective, it once again sends a signal to the audience that the country supports legitimate defense and encourages courageous acts of justice.

　　What are the requirements for legitimate defense in practical application?

　　Where does it draw the line from “intentional harm”?

　　Why did Article 20 of the Criminal Law become a "sleeping" provision?

　　…………

　　Recently, our reporter specially invited Zhou Huiyong, deputy director of the First Procuratorate of the Supreme People's Procuratorate, Tan Peng, a full-time member of the Procuratorial Committee of the Shaanxi Provincial Procuratorate, Wang Yong, deputy procurator-general of the Suzhou Procuratorate of Jiangsu Province, and a professor and doctoral supervisor at Tsinghua University Law School. Zhang Jianwei answered the questions raised by the audience.

　　Question 1: In judicial practice, what is the key to determining what constitutes legitimate defense?

　　Tan Peng: The key to determining what constitutes legitimate defense in judicial practice is to accurately grasp the cause conditions, time conditions, object conditions and intention conditions of legitimate defense. The cause condition means that the premise of legitimate defense is the existence of unlawful infringement; the time condition requires that legitimate defense must be directed against the ongoing unlawful infringement; the object condition means that legitimate defense must be directed against the unlawful intruder; and the intention condition means that legitimate defense must be for the purpose of causing harm. The country, public interests, personal, property and other rights of oneself or others shall be protected from illegal infringement. Of course, for defensive provocations that deliberately provoke the other party to harm you through words, actions, etc. and then fight back, this situation should not be regarded as defensive behavior.

　　Zhou Huiyong: Unlawful infringement includes infringement of rights to life and health, as well as infringement of rights such as personal freedom, public and private property; it includes both criminal acts and illegal acts. Unlawful violations should not be improperly limited to violent violations or criminal acts. You can defend yourself against illegal infringements such as illegally restricting others' personal freedom and illegally intruding into other people's homes. Unlawful infringement includes not only illegal infringement directed at the individual, but also illegal infringement that endangers the national or public interests or is directed at others.

　　Wang Yong: Some case investigators are accustomed to observing calmly from the perspective of an outsider after the fact, which makes it difficult to capture the hidden behavioral motives and subjective purposes of the parties involved. More importantly, this will lose the best perspective on the human nature of the case. Case handlers should change their thinking and use the idea of ​​​​"like I am suing" to put themselves into the scene and assume the roles of different parties. After drawing preliminary conclusions, they can then use complex and sophisticated technical rules to verify their conclusions. Any case must be comprehensively judged based on the cause, process, and consistent performance of the perpetrator. Some case handlers only focus on the "point in time" when the violence escalates in cases where injuries occur, and it is easy to draw the conclusion that there was a fight or injury. But find out why the suspect hit someone and what was the cause? Who is right and who is wrong about the cause? Who intensified the conflict during this process? If we look at the "timeline" of the development of the entire incident and the "relationship aspect" of the overall rights and wrongs of both parties, the conclusion may be different.

　　Zhang Jianwei: Justifiable defense is a reason for exemption. The key to determining what constitutes legitimate defense is the correct identification of the necessary facts of legitimate defense involved in the case. The facts are established and the problem of legal application can be easily solved. These essential facts include three elements: the first is the purpose fact, the purpose of legitimate defense is to protect the country, public interests, the person, property and other rights of oneself or others; the second is the object fact, the legitimate defense is aimed at the ongoing illegal infringement, The infringement is illegal and is ongoing; the third is the fact that the legitimate defense behavior caused certain damage to the illegal intruder. To determine whether it is legitimate defense, in addition to confirming the above-mentioned facts, it is also necessary to measure whether the defensive behavior exceeds the necessary limit. If the legitimate defense clearly exceeds the necessary limit and causes significant damage, it is excessive defense, and you still need to bear certain criminal liability. In judicial practice, it is a difficult problem to correctly apply the legitimate defense system, especially to correctly distinguish the boundaries between legitimate defense, excessive defense and general crimes. When accurately determining whether an actor has a defensive intention in accordance with the law, we cannot simply exclude the party from having a defensive intention simply because the consequences of the defensive behavior are heavier than the consequences of the illegal infringement. Whether the parties involved have defensive intentions should be comprehensively judged from the reasons for the occurrence and intensification of the conflict, the sequence of the fighting, the use of tools, the intensity of the measures taken, etc. Judgments based on common sense and common sense should be made from the perspective of the defender, based on factors such as the nature, intensity and danger of the unlawful infringement, the specific environment in which the defender is located, and so on.

　　Question 2: How should we understand the “ongoing” requirement in the law?

　　Zhang Jianwei: The object of legitimate defense as defined in Article 20 of the Criminal Law is "ongoing unlawful infringement." The so-called "ongoing" means that the infringement has begun but has not yet ended, and the infringement is in the process from the beginning to the end of time.

　　Zhou Huiyong: If the illegal infringement has formed a real and imminent danger, it should be deemed that the illegal infringement has begun; if the illegal infringement is temporarily interrupted or temporarily stopped, but the illegal infringer still has a realistic possibility of continuing to commit the infringement, it should be deemed that the illegal infringement has begun. The illegal infringement is still ongoing; in property crimes, although the illegal intruder has obtained the property, but can recover the property through chasing, blocking and other measures, it can be regarded as the illegal infringement is still in progress; for the illegal intruder has indeed lost the ability to infringe Or if the infringement has indeed been given up, the illegal infringement shall be deemed to have ended.

　　Zhang Jianwei: At the time when the infringement and legitimate defense behavior occurred, the evolution of the facts was in a state of chaos and it was difficult to predict comprehensively and accurately. As to whether the illegal infringement had begun or ended, and whether the defense exceeded the necessary limit, the case handlers must make subsequent judgments based on the role of the defender at the time of defense. In the situation, a reasonable judgment must be made in accordance with the general public understanding and in accordance with the law, and the defender cannot be harsh on the defender. Calm analysis in the office is different from analysis and judgment under urgent circumstances at the time of the crime. The investigators must put their judgment in the situation at that time.

　　Question 3: Article 20 of the Criminal Law clearly stipulates legitimate defense. The law supports legitimate defense, encourages courageous actions, and fights against illegal acts. So why is this clause a “sleeper clause”?

　　Tan Peng: Since my country’s Criminal Law in 1979 clearly stipulated the legitimate defense system, relevant cases can be handled correctly and appropriately in accordance with the provisions of the Criminal Law. In practice, regarding the application of the legitimate defense system, it is necessary to avoid being too strict and to ensure that it is not inappropriate. Especially when there are casualties in the case, the causes and evidence are complicated, the concepts and public opinion environment of "the person who dies is the most important thing" and "the person who dies is responsible" often have an impact and pressure on the investigators. At the same time, the criminal law provisions are relatively principled and Abstract: Before the "Guiding Opinions on the Lawful Application of the Justifiable Defense System" (hereinafter referred to as the "Guiding Opinions") of the "Two High Schools and One Ministry of Education" was promulgated and implemented, the legal theoretical and practical circles were still discussing the illegal infringement in the identification of justifiable defense. There are many controversies over the determination of situations such as defense and assault. In addition, the circumstances of some cases are complex and the collection of evidence is limited, making it difficult to accurately grasp legitimate defense.

　　Wang Yong: As the people's demands for democracy, rule of law, fairness, justice, and security are increasing, the active judicial concepts, abilities, and responsibilities of case handlers in handling cases have become higher. In addition to some objective difficulties, I think there is another reason that cannot be ignored, which is that the ability to collect evidence is now enhanced. If there is no more objective video evidence and a more complete method of collecting objective evidence, the application of legitimate defense may still be Faced with many practical difficulties.

　　Question 4: The storyline in the film revolves around an issue, that is, where is the boundary between "justifiable defense" and "intentional harm". As this boundary becomes clear, the film artistically presents the process of the legal provisions of self-defense from "sleep" to activation. What kind of changes in the procuratorial organs' case-handling concepts are reflected behind this? How should case investigators make the concept of "the law cannot give in to the law" more deeply rooted in people's hearts and implement it into judicial practice to avoid making those who act bravely for justice shed blood and tears?

　　Zhou Huiyong: Behind the change in the "Han Ming" law enforcement and judicial concept in the film is actually the Kunshan anti-homicide case, the Fujian Zhao Yu case, the Laiyuan anti-homicide case, and the Hangzhou Sheng anti-homicide case led by the Supreme People's Procuratorate in recent years under the guidance of Xi Jinping's rule of law. The accurate handling of legitimate defense cases with great social impact, such as the Chunping case, in accordance with the law has continuously activated the accurate application of the criminal law's legitimate defense provisions (Article 20) in practice. In the new era, the people have higher expectations and needs for democracy, rule of law, fairness, and justice. Law enforcement and judicial personnel should constantly change their concepts of law enforcement and justice, adapt to the new needs of the people, and improve the level of law enforcement and justice. When handling cases of self-defense, we must adhere to the organic unity of law, reason and sentiment, and maintain fairness and justice. It is necessary to base the defender on the specific situation of the defense, comprehensively consider the overall process of the case, and combine the possible reactions of ordinary people in similar situations to accurately grasp the time, limit and other conditions of defense in accordance with the law. It is necessary to fully consider the emergency state and nervousness of the defender when facing illegal infringement, and avoid judging the defender afterwards based on calm, rational, objective and accurate standards under normal circumstances. At the same time, we must pay attention to identifying the causes and consequences, distinguishing the right from wrong, ensuring that the case is handled based on the law, what should be done, and compatible with the situation, and conforms to the people's concept of fairness and justice, so as to achieve the organic unity of legal effects and social effects.

　　Tan Peng: To a certain extent, "Han Ming" is a microcosm of the change in the procuratorial organ's concept of case handling. When handling Zhang Guisheng's case, the prosecutor Han Ming in the film paid more attention to the application of legal provisions and reference to previous cases. However, the application and reference were relatively mechanical and rigid, and did not take into account the relationship between law, emotion, and reason. The pursuit of Make sure you don't make mistakes and follow the crowd. While handling Wang Yongqiang's case, a series of vivid facts such as Zhang Guisheng's accidental death, Hao Xiuping jumping off the building in despair, and his own son becoming a lawbreaker after stopping bullying at school made Han Ming, a self-proclaimed experienced prosecutor, begin to truly Exploring and thinking about the original intention of legislation and the value of the law, no longer sticking to abstract legal provisions, but starting to pay attention to the living people involved in the case, no longer being limited by past judgments, and starting to reflect and ask what is "correct" It no longer only pursues the error-free handling of cases, but dares to start from the people's simplest expectations for justice, to ask what kind of prosecutors the people need, and to pass the cases handled to the people, children, and society. What values ​​​​will be. Throughout the process, Han Ming completed an upgrade in the prosecutor's case-handling concepts and abilities. In practice, the "Guidance Opinions" issued by the "Two High Schools and One Government" not only respond to some key and difficult issues, but also release typical cases of legitimate defense. On the one hand, by making detailed and clear provisions on the legitimate defense system, we can solve the problems in judicial practice in the past that were difficult for judicial personnel to handle cases due to the abstract, general, and unspecified legal provisions of the legitimate defense system, and ensure that judicial organs can accurately handle cases. Apply and truly activate the legitimate defense system; on the other hand, it also allows the people to truly feel that judicial organs and judicial personnel listen to the people's voices, focus on practical hot spots, and actively change judicial concepts in handling each case with high quality and efficiency. , the attitude and determination to ensure fairness and impartiality in both procedures and effects. The procuratorial organs also pay more attention to the interpretation of the law and reasoning of cases, and are close to the masses to speak out in a timely manner. For example, through film and television works, they loudly shout out the voice that "the law cannot give in to the law". At the same time, they also clarify legitimate defense and intentional injury through law popularization activities. boundaries, so that people have the confidence, confidence, and methods to defend their legitimate rights in accordance with the law.

　　Wang Yong: Law is the most basic morality, but judicial conclusions will affect social order and good customs, and may even reshape the value orientation of society. Using judicial cases to lead social justice and reflect core values ​​is the greater value of case handling. The Supreme People's Procuratorate Party Group emphasized that it is good at coordinating the organic unity of law, reason and sentiment, and prevents cases from being handled mechanically or mechanically. In judicial practice, human relations and natural principles are both essential facts in the determination of legitimate defense and factors that need to be considered in sentencing. Public order, good customs and moral principles must be used to sort out and grasp the conflicts of interest existing in the case, including the interests of the perpetrator, the interests of the victim, and the rule of law. Order and society's expectations for public security, while assigning the weight of each interest, and then making a final judgment, can we implement the case handling effect of integrating law, reason and emotion, handle each case with high quality and efficiency, and truly and effectively make the people feel Fairness and justice.

　　Zhang Jianwei: The movie "Article 20" reflects that the procuratorial organs are getting rid of the shackles of the more mechanical judicial practices in the past when determining the nature of legitimate defense. They combine the three aspects of national law, natural principles, and human relations and comprehensively integrate political effects, legal effects, and social effects. Judges are used to handle cases, highlighting the strong message of the times that "the law cannot give in to the law."

　　Our society expects and encourages courageous behavior, and legislation and judiciary need to actively respond to society's appeals. Not only that, what legislation and judiciary encourage and inhibit also have a certain role in shaping social atmosphere. When a crime is taking place, the social defense mechanism may not be able to respond immediately. The person who has been illegally violated needs to carry out immediate self-defense, or someone needs to act bravely. If legitimate acts of self-defense and courageous acts are subject to wrong criminal prosecution, including mistakenly identifying legitimate self-defense as excessive defense, it will easily create a situation that is most beneficial to the illegal infringers, leaving the victims in society silent and allowed to be humiliated. When righteous people lose the courage and pride to "take action when it's time to take action," society will be in a "jungle society." To this end, judicial organs should clarify the logic of norms based on the original intention of the legislation, correctly apply the legitimate defense system, prevent self-defenders and those who act bravely for justice, and guide citizens to correctly exercise their right to defense.