Chen Ying's criminal defense|Definition of justifiable self-defense and mutual assault
Justifiable defense refers to the act of stopping the unlawful infringement in order to protect the state, the public interest, the person, property and other rights of oneself or others from ongoing unlawful infringement, causing certain damage to the unlawful infringer. Mutual assault refers to the act of mutual aggression actively carried out by participants under the control of the intent to fight and the intention to injure. Because of the apparent similarity between assault and defensive acts, it is not easy to distinguish between the two accurately.
Chen Ying, a criminal lawyer in Beijing, reminded that the "Guiding Opinions on the Proper Handling of Minor Injury Cases in Accordance with Law" issued by the Supreme People's Procuratorate and the Ministry of Public Security clearly points out that a proper distinction should be made between legitimate defense and mutual assault type intentional injury. People's procuratorates and public security organs should adhere to the principle of unifying subjectivity and objectivity, comprehensively examining objective circumstances such as the cause of the case, whether there was fault for the escalation of the conflict, whether a murder weapon was used or was prepared to be used, whether obviously disproportionate violence was used, and whether others were gathered to participate in the fight, to accurately judge the criminal suspect's subjective intent and the nature of his conduct. Where a dispute arises over trivial matters, and neither party is able to exercise restraint and a fight is triggered, where the party at fault takes the lead and the means are clearly excessive, or where one party takes the lead and continues to infringe despite the other party's efforts to avoid conflict, and the party who fights back causes harm to the other party, it shall generally be found to be legitimate defense. Where the other party is intentionally provoked to carry out unlawful offense, taking the opportunity to harm the other party, it is generally not found to be legitimate defense.
There is no substantial objective difference between justifiable self-defense and mutual assault. Both are objectively injurious acts. In judicial practice, it is customary to identify cases as mutual assault and deny legitimate defense, which may include the following types of situations: 1To fight is to fight each other;2.Fighting back is a fight against each other;3.If there is a dispute beforehand, they will fight each other;4.Prepare in advance to injure ***, that is, fight each other;5.The first to do it is to beat each other;6.Assault each other without dodging before defending;7.The means of defense are superior, that is, they fight each other8Intentional harm, retaliation, and other motives are mutual assault.
The circumstances in which justifiable defense is denied on the grounds of mutual assault can be summarized as follows: (1) A fight is a mutual assault;(2) Fighting back is a mutual assault;(3) Mutual assault is due to the intent to injure or retaliate(4) If there is a dispute in advance, preparing tools in advance is a mutual assault;(5) If you strike first, you can't defend yourself;(6) Duck before defending.
Chen Ying, a criminal lawyer in Beijing, pointed out that there is an exclusive relationship between legitimate defense and mutual assault, and that the distinction between legitimate defense and mutual assault should adhere to the logical order from objective to subjective and make a comprehensive judgment. Retaliation based on the intent to fight cannot be found to be self-defense;Immediate counterattack against unlawful infringement cannot be found to be mutual assault;Counterattack conduct with positive intent to cause harm shall be found to be mutual assault;The counterattack of the pre-prepared tool cannot negate the defensive nature of the act.
100 help plan