The author of this article is Li Mingzhen
Since the first day of the Lunar New Year, with the release of the movie "Article 20", many legal colleagues have gone to the cinema to conduct ** and write film reviews, which has also inspired me deeply. I just went to watch the movie yesterday, the vivid and clear story line, the ups and downs of the shooting rhythm, the vivid character portrayal of the characters, and the value of responding to hot spots and pain points are highlighted, just like the movie idea of "the law cannot give in to the law" and "what we do is not a case, but someone else's life" at the end, all make this movie give people hope in the Spring Festival of 2024.
This is a good guideline, and it also makes the justifiable defense clause in Article 20 of the Criminal Law "revitalize", and at least it can be seen that the Supreme People's Procuratorate is concerned about this issue and its determination. However, many problems that have existed in judicial practice for a long time, especially the determination of the "time condition" in legitimate defense, that is, whether the unlawful infringement is in progress, are related to the guilt or non-guilt of the perpetrator, and the question of whether the crime is minor or serious. The author takes this opportunity to analyze the defense time conditions of the two controversial cases involved in the film, and respond to the two disputed "time conditions" of defense in practice, so that colleagues can exchange ideas.
1. How to determine legitimate defense?
Justifiable defense refers to the act of stopping an unlawful infringement that causes or may cause damage to the wrongdoer in order to protect the state, the public interest, the person, property and other rights of the person or others from an ongoing unlawful infringement. It is generally believed that there are two types of justifiable defense, namely special justifiable defense and general justifiable defense. Special justifiable defense (Article 20, Paragraph 3 of the Criminal Law) is the defense against ongoing violent crimes that seriously endanger personal safety (**homicide, robbery, **kidnapping, etc.). For special defense, there is no question of excessive defense. General justifiable defense (Article 20, Paragraph 1 of the Criminal Law) is a defense against other unlawful offenses that are in progress, and there is a requirement for a limit of defense, so there may be a possibility that the defense is excessive.
There are four conditions that must be met for justifiable defense to be established:
First, there must be a reality of unlawful infringement. The unlawful infringement here is an offensive, destructive, urgent, and continuous unlawful infringement, and the result of the infringement of legal interests can be mitigated or avoided by taking defensive actions, and the defense can be established.
Second, the unlawful infringement must be ongoing. In this context, it means that the unlawful infringement has begun and has not ended, and the state of the unlawful infringement still exists.
Third, it is necessary to defend against the wrongdoer himself. That is, the perpetrator of the unlawful offense himself, not his companion or others.
Fourth, it must not clearly exceed the necessary limit and cause significant damage. If the perpetrator is only burglary and there is no controlled knife or it may be transformed into a violent crime that seriously endangers personal safety, and the head of the household kills the perpetrator with a knife in order to prevent the theft, this is clearly beyond the necessary limit of defence, because the right to life is certainly higher than the legal interest of the right to property.
The above four articles are indispensable, because legitimate defense must harm the interests of the unlawful infringer, but because "the law cannot yield to the lawless", the justifiable defense clause is set up to justify the act that harms the interests of the unlawful infringer and prevent the illegality of the act. Therefore, in judicial practice, the conditions for the determination of justifiable defense are very strict, and the above four points are indispensable, and even in many cases of intentional injury, there are many elements of the nature of justifiable defense, but a major difficulty lies in the determination of the "time condition" of justifiable defense.
II. The "Time Condition" for the Determination of Justifiable Defense
In judicial practice, the author believes that the most difficult to grasp among the four conditions for the establishment of justifiable defense is Article 2, how to judge that an unlawful infringement is in progress? As the time course of the illegal infringement reflected in the two controversial criminal cases in the movie, one is that Wang Yongqiang took scissors to stab his wife's village bully Liu Wenjing, has the illegal infringement begun at this time, or has it ended? Second, the whole process of the bus driver stopping the harassment of several men of the female passengers, was there a mutual assault or was the illegal infringement going on throughout the whole process? The author analyzes the plot of the movie.
(1) Wang Yongqiang's case
From the foreshadowing of the plot told in the movie, Liu Wenjing's ** behavior towards Wang Yongqiang's wife is in a continuous state, there have been several times before, and there is a high probability that there will be later, can this kind of "unlawful infringement with the possibility of **" be regarded as continuous illegal infringement in the justifiable defense clause? The author thinks it is negative. Where the unlawful offense is temporarily interrupted or temporarily stopped, the unlawful offender still has a realistic possibility of continuing to carry out the offense, it shall be found that the unlawful offense is still ongoing.
In Wang Yongqiang's case, although Liu Wenjing's daughter-in-law's illegal infringement may continue, this continuation is not because it is temporarily interrupted or temporarily stopped, but because Liu Wenjing has completed the ** act and has walked out of Wang Yongqiang's house. At this time, if it was only because Liu Wenjing had finished Hao Xiuping (the knife in the movie did not appear), Wang Yongqiang stabbed Liu Wenjing with scissors to his death in order to prevent Liu Wenjing from coming again next time.
And a plot is set up in the movie, and the appearance of a knife is precisely to show that the illegal infringement is urgent and realistic: the illegal infringement at this time is no longer **Hao Xiuping, but Liu Wenjing wants to kill Wang Yongqiang. The specific determination of the time when the unlawful infringement began, according to the setting of the plot of the movie, should be the time when "Liu Wenjing said to Wang Yongqiang that he was going to stab him with a knife and turned around to open the car door to get the knife", which has already formed an imminent, realistic, and specific danger to Wang Yongqiang, at this time, Wang Yongqiang took scissors to stab Liu Wenjing and caused his death, which can be determined as special defense, so in the end, the film's prosecutor Han Ming withstood the pressure and believed that this case was legitimate defense and nothing else.
But after all, the movie has a dramatic technique in it, and the author has a little doubt when he is in this scene: in the movie, Liu Wenjing threatened to kill Wang Yongqiang with a knife, and there was also an action to open the door, but at this time, the knife did not reach Liu Wenjing's hand, Wang Yongqiang went up and stabbed Liu Wenjing with scissors, can it be strictly regarded as an illegal infringement has begun? The author believes that it is necessary to look at the overall situation in combination with the entire cause and effect: first, Liu Wenjing is a well-known bully in the village, often doing some things to bully the people, although it is not necessarily necessary to put a knife in the car, but it is also more likely; Secondly, combined with his threat to take a knife, and the action of turning around to take a knife, and compared with Wang Yongqiang's own strength, Liu Wenjing's action will inevitably form a deterrent to Wang Yongqiang, and from Wang Yongqiang's perspective at that time, there is a realistic and imminent danger.
From the above, we can understand through the Wang Yongqiang case that under normal circumstances, the unlawful infringement begins with the beginning of the commencement of the crime, and under special circumstances, the unlawful infringement begins with the actual and imminent danger of the unlawful infringement.
(2) The case of bus driver Zhang Guisheng
In the movie, Prosecutor Han Ming explained to the driver Zhang Guisheng paragraph by paragraph through the monitoring of the crime scene** whether the deadline for his behavior ** was justified defense, and ** was a ...... of mutual assaultAt this time, Prosecutor Han Ming believed that the first time he stopped it, it was "legitimate defense", and when the two sides argued together, it was a "mutual assault", and when he picked up something again and smashed one of the male passengers, it was "intentional injury".
In March 2023, the Supreme People's Procuratorate and the Ministry of Public Security jointly issued the Guiding Opinions on the Proper Handling of Minor Injury Cases in Accordance with Law (hereinafter referred to as the "Guiding Opinions"), which clearly stated that "it is necessary to accurately distinguish between legitimate defense and mutual assault type intentional injury", and pointed out that "in the event of a dispute over trivial matters, neither party can exercise restraint and cause a fight, and the party at fault will act first and the means are obviously excessive." or where one party acts first, continues to infringe despite the other party's efforts to avoid conflict, and retaliates and causes harm to the other party, it shall generally be found to be legitimate defense."
According to the movie clip, it can be seen that the female passenger who was harassed by the two men first, when Zhang Guisheng stepped forward to stop it, Zhang Guisheng did not have any action to beat the other party, but simply stopped, but the other two people beat Zhang Guisheng first, and the two sides only beat each other at this time. There is no intention to fight each other. After the two men knocked Zhang Guisheng to the ground, one of the men got out of the car, and the other man walked towards the woman who was harassed, and then Zhang Guisheng took the initiative to take something and smashed it at the man, causing the man to fracture his skull.
How to define Zhang Guisheng's behavior? Can it be recognized as justifiable defense? In my opinion, it should be affirmative. According to the "Guiding Opinions", it can be seen that the two men were the first to do the work, and they were the party at fault, and after Zhang Guisheng went to stop the other party's harassing behavior, Zhang Guisheng naturally reacted and fought back, and the latter two men took turns to press Zhang Guisheng to the ground and beat him, and the means were obviously excessive. Later, Zhang Guisheng injured the man who intended to commit the unlawful assault again, and the author believes that the elements of justifiable defense are met: because the unlawful infringement is still ongoing: although the unlawful infringement of the two men who harassed the girl for a short time because they knocked Zhang Guisheng down, it was not terminated, and the specific manifestation is that the plot of the movie shows that not both of them get out of the car, but a man who goes straight to the opposite of the girl with the intention of committing threats or other illegal acts again. At this time, where there is still a realistic possibility that the unlawful infringer will continue to carry out the violation, Zhang Guisheng's conduct meets the time requirements for legitimate defense.
Therefore, from the case of Zhang Guisheng, we can know that where the unlawful infringement is temporarily interrupted or temporarily stopped, but there is still a realistic possibility that the unlawful infringer will continue to carry out the infringement, it should be found that the unlawful infringement is still ongoing.
3. Summary
For the above two cases, the determination of the defense time condition that is different from the ordinary situation is that we need to pay more attention to it in judicial practice, and it is more necessary to comprehensively combine the evidence in the case, and comprehensively review the cause, means, results, time, place and other factors, so as to avoid mechanical justice. Of course, we can't expect the expression of a film art to be completely legally rigorous, but it is still undeniable that this film is a good learning material for criminal law knowledge, and I hope that in the future, in the case of mutual assault intentional injury, as well as the identification of justifiable defense cases, the legal professional community can work together to promote the progress of the rule of law! If there is any inappropriateness in the above views, please criticize and correct your colleagues in the legal field.