Shaanxi Haogong Law Firm Criminal Research InstituteArticle Wang Jiangtao.
One night in the midsummer of 2020, Hou, who was over fifty years old, set up a roadside stall to sell fruits as usual. At about 22 o'clock, after Liang and other 5 people gathered for dinner and wine, they went to the fruit stall to buy fruit. In the process of tasting the fruit, the two sides had a verbal dispute, Liang smashed Hou with a plastic stool, and the entourage took away the recliner behind Hou, causing Hou to dodge and fall to the ground, and the surrounding people saw this and stepped forward to persuade Liang and others to leave. However, Liang and others turned back and continued to find Hou's theory, and the two sides had a verbal dispute again. Liang overturned Hou's fruit stall and smashed Hou again with a plastic stool, and another person in the company also stepped forward and punched Hou in the chest. Hou stepped back to dodge, and picked up the kitchen knife on the fruit stand to defend. Liang and others rushed up, trying to grab the kitchen knife, but during the scuffle, Hou's knife cut Liang's face. Liang's injuries were assessed to constitute a Grade 9 disability, and the extent of the injury was assessed by the public security organs to be a Grade 2 serious injury.
The procuratorate charged Hou with the crime of intentional injury and initiated a public prosecution, and later applied to withdraw the indictment and made a decision not to prosecute. Subsequently, Liang filed a civil lawsuit, demanding that Hou compensate for medical expenses, nursing expenses, lost work expenses, disability compensation and other personal injury losses totaling more than 400,000 yuan.
During the trial, Hou argued that Liang and others' behavior was a typical example of picking quarrels and provoking troubles, which not only caused serious personal and property damage to themselves, but also seriously trampled on social order. Their own counterattack is justified defense, and according to the relevant provisions of the Civil Code, they should not bear civil liability.
The court finally ruled that Hou's act of holding a knife for defense did not constitute excessive defense, and he did not bear civil liability for the damage caused to Liang. Liang was dissatisfied with the first-instance judgment and appealed. After trial, the Chongqing Municipal No. 5 Intermediate People's Court held that Hou's conduct constituted legitimate defense and did not bear civil liability. The appeal was dismissed and the original judgment was affirmed.
The focus of the dispute in this case is whether Hou's infringement on Liang constituted legitimate defense. First of all, when Hou faced the illegal infringement of Liang and other young and middle-aged people alone, he was at a great disadvantage in terms of number and physique, coupled with the fact that he was subjected to a situation where he was provoked by nothing and intentionally provoked, and then gradually provoked and further infringed, if he did not immediately take a fairly strong counterattack, his personal property and personal legitimate rights and interests would inevitably suffer more serious illegal infringement, and when he could not bear it and had no way out, Hou chose to hold a knife to stop the illegal infringement of Liang and others, and his behavior was defensive in nature and constituted legitimate defense.
Second, the illegal infringement faced by Hou is urgent and the disparity in power is huge, and it should not be required to maintain a considerable degree of reason and flexibility to choose instruments or means that are less harmful than knives for counterattack defense. The available evidence cannot judge or determine whether Hou can take defensive measures that can effectively stop the unlawful infringement of Liang and others, and control the consequences or scope of the damage, in addition to further tolerance and concession. Therefore, Hou's act of holding a knife for defense does not constitute excessive defense, and he does not bear civil liability for the damage caused to Liang.
The Civil Code stipulates that no civil liability shall be borne for damage caused by legitimate defense. Where legitimate defense exceeds the necessary limits and causes undue harm, the defender shall bear appropriate civil liability. In order to clarify the basis for the application of law and unify the criteria for determination, the Supreme People's Court promulgated the judicial interpretation of the General Provisions of the Civil Code to further stipulate the criteria for determining justifiable defense.
First of all, whether it constitutes justifiable defense should be examined and determined from four aspects: First, it must be aimed at the actual unlawful offense. Second, it must be targeted at ongoing unlawful violations. Third, it must be carried out against the wrongdoer himself. Fourth, the subjective intent of the exercise of defence must be to protect the legitimate rights and interests of the person or others. Second, as to whether it constitutes excessive defense, it should be examined from two aspects: whether the legitimate defense act exceeds the necessary limit and causes undue harm, and the key and core lies in whether it exceeds the necessary limit. However, in view of the complexity of this issue and the lack of clear standards, judicial practice should be based on the necessity and proportionality of the defensive act based on factors such as the nature, means, intensity, and degree of harm of the unlawful offense, as well as the urgency, means, and intensity of the defense.
In this case, although Hou seriously injured Liang with a knife, taking into account factors such as the balance of forces between the two parties at the time of the conflict, the urgency of the unlawful infringement, the degree of harm, the timing of the defense, and the effectiveness of the means, if Hou did not immediately use the instrument to fight back when he faced the impact of Liang and others alone, not only would he not be able to effectively stop the unlawful infringement, but he would inevitably suffer more serious infringement. Therefore, Hou's counterattack with a knife for defensive purposes is reasonably necessary and does not exceed the necessary limit, and should be found to constitute legitimate defense, and Liang should not be liable for civil compensation for the damage caused to him.
When handling similar cases, the people's courts should not be overly demanding that every defensive act taken by ordinary people be as precise as a textbook, but should get rid of inertial misunderstandings such as "consequentialism" and "overemphasizing reciprocity of means", resolutely put an end to the erroneous practice of "making peace with the mud", and fully carry forward the core socialist values of justice and the rule of law.