The author of this article is Liang Yali
Once the Spring Festival movie "Article 20" was released, it was widely praised by the masses, and at the same time, it also triggered extensive thinking among many people in the legal circle about Article 20 of the Criminal Law, that is, legitimate defense. The title of the film "Article 20" comes from Article 20 of China's Criminal Law: "In order to protect the state, the public interest, the person, property and other rights of oneself or others from ongoing unlawful infringement, the act taken to stop the unlawful infringement, and cause damage to the unlawful infringer, is justified defense and does not bear criminal responsibility." ”
This film can be summarized as three cases about justifiable defense encountered by prosecutor Han Ming, one of which is a main line case, and the remaining two are auxiliary cases. The vein of the movie also unfolds with the case as a clue.
The main case is related to an illegal debt collection. In order to treat the child, the victim borrowed a loan shark from the village tyrant. In order to collect debts, the village tyrant went to the victim's family many times, killed the victim's dog, and tied the husband to the door with a dog chain, and finally the husband couldn't bear it anymore, and picked up scissors in fear and anger, causing the village tyrant to be injured and later died.
The party in the second case is Han Ming's son, and in the face of school bullying, Han Ming's son of prosecutor took action to stop it, but unexpectedly injured the son of the teaching director, so he faced administrative punishment.
The third case was handled by Han Ming, in which a bus driver was convicted of intentional injury for committing violence against a taunter in order to stop molesting a female passenger on a bus.
All three of these cases reflect the current dilemma in the process of determining "legitimate defense" in China. The Spring Festival movie "Article 20" undoubtedly shows this contradiction vividly, but from the perspective of legal professionals, we should be aware of the expectations of the majority of parties to the case for "legitimate defense", and the previous adjudication logic, case-handling methods, and determination standards should also be more in line with actual needs.
On August 18, 2020, the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security issued the Guiding Opinions on the Lawfully Applicable the Justified Defense System (hereinafter referred to as the "Guiding Opinions on Legitimate Defense"), and on December 22, 2022, the Supreme People's Procuratorate and the Ministry of Public Security issued the Guiding Opinions on the Proper Handling of Minor Injury Cases in Accordance with Law (hereinafter referred to as the "Guiding Opinions on Minor Injury Cases") The main thrust of the two guiding opinions is to uphold the erroneous logic of "whoever can make trouble is justified" and "whoever is killed or injured is justified" and go all out to defend the fundamental principle that "the law cannot yield to the lawless."
Fairness and justice have never been a slogan, but must be truly manifested through every judicial case. In recent years, there have been two cases concerning legitimate defense, which also show that the judicial organs are gradually clarifying and guiding the way in which cases of legitimate defense are handled.
The first is the 2016 case of stabbing to death Yu Huan, who insulted his mother, after his mother was bullied by an illegal debt collection gang, Yu Huan was angry and clashed with one of the debt collectors, resulting in his death after being seriously injured. In the first instance, Yu Huan was sentenced to life imprisonment, which then caused widespread discussion among the people, is it wrong to stab to death the person who humiliated his mother? Under the attention of **, the second-instance sentence was changed to Yu Huan's excessive defense and sentenced to five years in prison. This change reflects the rational application of legitimate defense, and is also in line with the simple legal feelings and values of the broad masses of the people.
The second is the 2018 Kunshan Brother Long case, the deceased Brother Long was drunk and rode in a car and had a conflict with Yu Mou, who was driving normally, and then took out the machete from the car and had a physical conflict with Yu, Yu picked up the machete in the fight, and slashed Brother Long in order to attack, and Brother Long died. In the process of handling the case, the Supreme People's Procuratorate instructed the Jiangsu procuratorate to intervene in the case in advance, and quickly came to the conclusion that Yu's conduct was justified defense. The legal profession and the general public have praised this, and the applicable standards of justifiable defense have been further clarified, and real cases have entered everyone's life.
It is often said that art comes from life, and the contradictions in the film about the justifiable defense cases are actually true portrayals in the current judicial practice
The first is that justifiable defense must be premised on violent criminal acts. To a certain extent, this criterion confuses legitimate defense with special defense, and if legitimate defense can only be carried out in the face of violent crimes such as homicide, robbery, and **, it will undoubtedly logically set aside the provisions on special defense. In fact, when an unlawful infringement occurs, the parties cannot immediately judge the legal nature and harmful consequences of the acts, and if the above-mentioned criteria are used to judge whether the acts constitute legitimate defense after the parties have justified their defense, it will be suspected of making an ex post facto judgment and it is very easy to fall into the wrong logical circle. To this end, Article 5 of the Guiding Opinions on Justifiable Defense also clearly states: "Unlawful infringement includes acts that infringe not only on the rights to life and health, but also on the rights of personal liberty and public or private property; This includes both criminal and illegal acts. Unlawful aggression should not be unduly confined to violence or criminal acts. Defenses may be exercised against unlawful encroachments such as unlawful restrictions on the personal liberty of others or illegal intrusion into the homes of others. ”
The second is that "fighting back" means beating each other, which is also the main reason for controversy in most ambiguous cases. In most cases, in the face of the attack of the abuser, the situation exists is nothing more than fighting back, defending, and fleeing. However, the above-mentioned acts do not exist independently in actual cases, and it is difficult to expect the parties to always adopt a purely defensive posture in the face of the attack of the abuser, and the defense is often accompanied by counterattack or escape. Therefore, once there is a counterattack, it is contrary to the original intention of the establishment of the legitimate defense law to identify it as a mutual assault, and it may even cause the masses to be afraid of the counterattack, forming a sick situation of "not daring to fight back". As long as the counterattack meets the limits of defense, it should be found to be justified defense, so as to provide a path for the parties to protect themselves and also play a role in deterring illegal acts.
The third is that as long as the act of causing physical harm to the other party should be punished. The logic of this error arises from the apparent nature of the injured party, the law tends to protect the vulnerable group, and often the physically injured party has a natural weak party character, but it cannot be ignored that the act of justifiable self-defense can also cause harmful consequences to the body. Therefore, when the defensive act causes bodily harm to the other party, it is more necessary to comprehensively and systematically analyze the causes and process of the case, rather than just focusing on the harmful consequences and only the consequentialism.
Article 20 is a window to thousands of cases for us, and there are countless cases similar to those in the film in reality, and social fairness and justice require the efforts of every public, and even more so, the protection of every legal person. The rights and wrongs of legitimate defense are actually the high and low of the people's sense of identity with judicial adjudication, and it also reflects the society's pursuit and defense of fairness and justice. Citizens' sense of right and wrong and sense of justice are cultivated through living cases, and a good social atmosphere is propagated through reasonable and lawful judgments. When confronted with a legitimate defense case again, we should persist in taking the facts of the case as the premise, pay attention to the details of the defense, judge the limits of defense, make a judgment that is lawful and reasonable at the same time, and strive to achieve the unity of heavenly principles, national law, and human feelings, so that fairness and justice become a well-known legal synonym.