Lawyer Liu Ping: Article 20 is really difficult to justifiably defend.
1. Movies promote the rule of law further.
To be honest, purely in terms of the movie, it was shot very well, whether it was the story, Taoist costumes, lines, casting, and acting skills. In the past two years, a large number of film and television works have obviously contributed more to the rule of law in China than most legal professionals combined. There is a feeling that movies save the rule of law, and TV saves the rule of law. Including "I Am Not the God of Medicine", "All or Nothing", "Public Prosecution Elite", "The Bottom Line", "Black Lighthouse", etc., most of them reflect the feelings of ordinary people about the rule of law from a certain aspect. We often say that "handle every case well, promote the rule of law by one millimeter" and "individual cases promote the rule of law further", and an excellent movie can easily promote the rule of law by a big step. If Article 20 can really activate the zombie clause of justifiable defense, it will be a real merit.
Speaking of which, the legal man is a bit pathetic and pathetic. Over the years, defense lawyers have been suppressed and controlled, unable to let go of their hands and feet, and most prosecutors and judges have exempted themselves from responsibility in the name of the procuratorial committee and the judicial committee in order to be promoted, and they dare not take responsibility. It's really sad that legal people are still hurting each other even when handling cases.
2. Article 20 of the Criminal Law is most often cited by defense lawyers, not procuratorates.
In practice, it is the defense lawyer who invokes Article 20 of the Criminal Law the most, and it is the defense lawyer, not the procurator, who actively fights for the rights of the client. If prosecutors can really invoke Article 20 more to handle cases, it will be a blessing for us defense lawyers. It's just a pity that I'm afraid I can only act like this in the movie, and I'm happy. Most of the time, the prosecutor's office is on the opposite side of the prosecution that charges the crime of intentional injury. This can be illustrated by past jurisprudence and data. Of course, there is no right or wrong here. We would like to believe that most of the cases in which the procuratorate alleges intentional injury are correct, but in my personal experience in handling cases, it is very difficult for the procuratorate to issue a prosecutor "Han Ming" in Article 20. Once in a while, I met an idealistic prosecutor, and it was simply lucky. However, an ordinary person may not be able to expect all prosecutors to be "Han Ming" or judges to be "Bao Gong", because this is a matter of the system, and it cannot be changed by an individual.
3. Movies can't discredit lawyers, and lawyers aren't so vulnerable.
The movie seems to have a plot design to smear the police and lawyers. This kind of practice of raising one's own image by smearing other legal people is actually relatively low-level. It's understandable if this is a design requirement for a movie script. Many lawyers publish film reviews and criticize them vigorously, feeling offended, but they don't have to. Lawyers are less vulnerable. Because no matter how the movie is made, in practice, it is always the lawyer who actively fights for the rights of the client. It is also the lawyer who defends and advocates for legitimate defence. The movie and ** only focus on a few focus cases supported by the moral high ground, and there are a large number of ordinary justifiable defense cases that have little attention, all of which are defense by lawyers who are hoarse in court, and prosecutors are opposed on one side. Of course, if the prosecutor is really brave enough to fulfill the obligation of objectivity and impartiality and promote the fairness and justice of the case, it is really rare, and it is a blessing for all parties involved in criminal cases. The problem is that the prosecutor's office is in a position to do so.
IV. Attribution of guilt is still a common criterion for judging in judicial practice.
In the face of sudden illegal infringement, it is impossible for ordinary people to strictly follow the legitimate defense conditions in the textbook to regulate their every defensive action, so as to ensure that their rights and interests are not harmed, and at the same time, they can also avoid violating the law by excessive defense. However, in the face of the propaganda slogan "lose the fight and go to prison, go to jail if you win", it often only leads to one result, that is, in the face of illegal infringement, we dare not fight back, and after fighting back, it may lead to the result of imprisonment. Because no one can measure the strength of their own counterattack, how much strength the opponent can withstand to fight back.
In fact, in cases involving legitimate defense, we need to conduct a comprehensive analysis of the case, considering various elements of the violation, such as the victim's prior behavior, motivation for the act, the tools of the crime, and the party's defense style and awareness of defense. After taking these factors into account, the person's defensive behavior is evaluated to determine whether it is justified. A thorough review and evaluation of the parties' conduct is essential to ensure a fair and just judicial outcome.
Justifiable defense is not only a direct confrontation between the right and the unjust, nor is it just a confrontation between the law and the lawless. In this complex society, the evaluation of legitimate defense is directly related to the essence of the rule of law. Thus, the assessment of justifiable self-defense reflects not only the legal character of a country, but also respect for human nature and justice, and it is also a key way for the public to understand how criminal law punishes crime and upholds human rights. In order to find a balance in the legal system, it is necessary not only to ensure the legitimacy of legitimate defense, but also to pay attention to the situation of the aggressor and try to avoid unfair application of the law.
Fifth, when there are no cameras, it is difficult to defend justifiably.
In the movie "Article 20", there is no camera for the illegal infringement that occurred in the school toilet, so the school bullying behavior cannot be verified. In fact, this is the case in most cases. Forensics is so hard. Not every case happens to be filmed on camera, and a large number of justifiable defense cases face the problem of insufficient evidence, let alone a God's perspective. In judicial practice, whether Article 20 of the Criminal Law can be accurately applied ultimately depends on the issue of evidence and proof. In this regard, I think the presentation of the movie "Article 20" is the closest to the real case. There are different views on the burden of proof and the standard of proof for determining justifiable defense as "beyond reasonable doubt" and "credible and sufficient". In judicial practice, defense lawyers are also faced with various unreasonable demands from the procuratorate and the courts, and often sneer at the defense lawyer's justifiable defense reasons, sneering, and saying, "Do you have evidence?" "Just leave the defense lawyer speechless. Because defense lawyers can't give law lessons to judges in court. In a large number of cases, there is only verbal evidence, and there is huge room for judicial discretion in determining whether it is a mutual assault or a legitimate defense. For example, in the case of Deng Jili's justified defense appeal in Hunan, the autopsy report and the murder weapon were missing, and the switchblade in the victim's possession was also missing. For example, in the case of intentional injury and death caused by Jin in Shenzhen, which we handled, the party Jin was in a closed room without a camera when he was unlawfully violated, but when he was defending and counterattacking, he happened to be outside the corridor and there was a camera, and what the camera captured was the plot of the party fighting back against the illegal infringer. Therefore, as far as legitimate defense cases are concerned, the burden of proof and the standard of proof will become problems in judicial practice, and it is clear that the responsibility lies with the procuratorate, but it has become the responsibility of the defense lawyer. There is no consensus on the burden of proof and the standard of proof for justifiable defense.
Sixth, the difficulty in determining legitimate defense is really too difficult.
There are five constitutive elements of justifiable defense: 1. Cause conditions: the existence of an actual unlawful offense; 2. Time condition: The unlawful infringement is ongoing. 3. Subjective conditions: have a sense of defense. 4. Target conditions: for the wrongdoer himself. 5. Limit conditions: It cannot obviously exceed the necessary limit and cause significant damage. To determine justifiable defense, all five elements are indispensable. Each element is the focus of contention between the prosecution and the defence. In practice, the logic of proof of justifiable defense is different from that of other criminal cases, in that five conditions need to be met at the same time to prove that justifiable defense is constituted, while only one condition is not met to prove that justifiable defense is not constituted. Therefore, judging from the distribution of the burden of proof, it is really difficult for a defense lawyer to prove that a legitimate defense has been established.
Among these five elements, the time condition and the limit condition are often disputed.
For example, the time condition, the problem of the interruption of the perpetrator's violation. As shown in the movie "Article 20", has it ended, has the illegal infringement such as threats and intimidation ended, or has it been going on? Is there a stay of wrongdoing? Is the suspension justified? For example, in the Kunshan anti-homicide case, the long knife in the hands of the aggressor fell, is it considered to have been suspended? In many cases, how the parties judge and recognize the suspension of the unlawful infringer will become the focus of controversy.
In addition, when a party faces an unlawful infringement, it is impossible for the parties to accurately measure whether the means of defense are excessive, and the results of the defense are often unpredictable or beyond the scope of the estimate, which ultimately leads to the imputation of the case or the result. For example, on the issue of whether the party's preparation of defensive tools in advance is legitimate, when the unlawful aggressor threatens to infringe on the party, and the party prepares defensive tools for self-protection, it is often determined by the procuratorate that the party has the intention to fight, which is a preparatory act for the crime. Under the influence of the presumption of guilt of the prosecutor's office, it is inevitably considered unjustifiable. So, it's really hard.
Finally, to quote Professor Chen Zhonglin, "The modern rule of law should be the rule of humanity and conscience in the final analysis." We are based on the people's law, and we should never interpret it in a way that fundamentally deviates from the common sense, common sense, and common sense that the common people recognize. "I hope that the procuratorate and the court can handle more conscience cases like in the movie, and don't use the procuratorial committee and the judicial committee as a shield at every turn to shirk responsibility.
About author:Liu PingThe lawyer is a partner of Guantao Zhongmao Shenzhen office. Practice Areas: Criminal Defense, Criminal Compliance. Mr. Liu Ping was awarded the "Top 10 Most Concerned People in China's Lawyer Industry in 2017" by the Ministry of Justice. He was awarded the "2017 Outstanding Achievement Award for Criminal Defense", "2017 Top Ten Classic Cases of Not Guilty Defense", and "2019 Top Ten Effective Defense Cases" by the Case Law Research Society of China Law Society and the Criminal Defense Research Center of China University of Political Science and Law.