Recently, the movie "Article 20" directed by Zhang Yimou was released on the first day of the Lunar New Year, reaping a bumper harvest of word-of-mouth and box office. The film takes the "Kunshan Anti-Homicide Case", which once caused a sensation in the whole country, as the prototype of the case, and vividly interprets the institutional connotation and social significance of Article 20 of the Criminal Law through the wonderful performances of actors such as Lei Jiayin, Ma Li, and Gao Ye"The law cannot give in to the lawlessness."The idea of justice.
As we all know, the justifiable defense system provided for in Article 20 of the Criminal Law has long been passively or even evasively applied in judicial practice, and the "Kunshan Anti-Homicide Case", which occurred on August 27, 2018, is recognized by the academic community as a "watershed" case that fully activates this "zombie clause". Since the Kunshan case, with the active promotion of the highest judicial organ, legitimate defense has been recognized in a series of cases, citizens' courageous resistance to illegal acts has been supported, and social justice has been promoted.
The movie "Article 20" reproduces the process of this conceptual change, and on the day of the reunion of all families, the spirit of fairness and justice is once again deeply rooted in the hearts of the people. On the occasion of the film's hot screening, the China French Review once again pushed the first chapter written by Professor Che Hao of Peking University Law School for the Kunshan anti-homicide case, and revisited it"Justifiable defense is not a boxing match, but a fight against aggression".This is a deafening declaration of justice.
Cha Hao
Professor, Peking University Law School
Item
1. Evaluation of the defender:It should not be based on the omnipotent perspective of the aftermath, but on the perspective of ordinary people in the matter.
2. Whether the infringement has ended:It is necessary to see whether the infringer has lost the ability to infringe and clearly renounce the intent to infringe.
3. Concept renewal:"Justifiable defense is not a boxing match, but a fight against aggression".
The "Kunshan Anti-Homicide Case" (hereinafter referred to as the "Kunshan Case"), which has attracted the attention of the whole people, has been recognized as justified defense and withdrawn. In any case, I still have to give a thumbs up to the Jiangsu police and prosecutors. Anyone familiar with China's judicial reality understands that it is not easy to establish legitimate defense in practice. It's just that it is impossible for every case to be supported by the Kunshan case, and it is difficult for judicial personnel to have the motivation to make a breakthrough within the system.
Here, everyone is cheering for the breakthrough in the Kunshan case, and over there, a number of case documents have been leaked on the Internet, which were rejected by the Supreme Court nearly a year or two later, ruling that legitimate defense is not established. I can't see the whole case, so it's hard to comment. However, from the expression of some key words and sentences, it can still be felt that there are many contradictions with the reasons for the withdrawal of the Kunshan case.
Therefore, the road is both obstructive and long. Next, it is more important to go beyond the Kunshan case and pay attention to the updating and establishment of the basic concept and general rules of justifiable defense. In this regard, I would like to briefly talk about the following three points.
Evaluate the defender
It should not be based on the omnipotent perspective of the aftermath, but on the perspective of ordinary people in the matter.
In the case of self-defense, the evaluation of the defender must be returned to the time of the incident. The judiciary should put himself in the shoes of a person with an average level of reason, emotion and experience in society, and then let the soul of this "ordinary person" possess the defender, open his eyes, face the situation at the time of the incident, and imagine what kind of reaction the ordinary person might have, which can be expected, accepted or tolerated by the legal order. Finally, it is possible to correctly evaluate whether the defender's reaction in the case is within the range of the above-mentioned reasonable response.
This is a simple thing to say, and it seems that everyone can do it, but in fact, it requires a lot of experience and wisdom from the judiciary. Because the "ordinary people" here refer to the ordinary people who are at the scene of the crime and face the sudden violation, not the ordinary people who are usually in the normal social order. Justices often need to contact a large number of perpetrators and victims, and delve into a large number of details in the scene and file materials, in order to accumulate an understanding of the real humanity of the crime scene and then conceive evenly.
Even if it is found that the defensive actions exceeded the necessary limits after the fact, the defenders at the time of the incident cannot be evaluated solely from this post-mortem standpoint. Because, at the scene of the crime, not only is it impossible for a defender to have the perspective of God who is omniscient and omnipotent, but it is also difficult to satisfy even the reason, calmness, and judgment of ordinary people who are usually in a normal social order. This is why section 33 of the German Penal Code states: "A defender who defends himself excessively because of panic, fear or fright, shall not be held criminally responsible." ”
To sum up, when imagining the reaction of ordinary people to the assault in a case, the judiciary must not take an after-the-fact perspective, but must assume that they are at the scene of the crime. In addition, defenders should be judged by the reason and judgment of "ordinary people" at the time of the crime scene, rather than the reason and judgment of "ordinary people" in the normal social order.
Whether the infringement has ended
It is necessary to see whether the infringer has lost the ability to infringe and clearly renounce the intent to infringe.
Paragraph 3 of Article 20 of the Criminal Law stipulates: "Whoever takes defensive actions against those who are in the process of committing **, homicide, robbery, kidnapping, and other violent crimes that seriously endanger personal safety, causing an unlawful infringement, is not considered to be in excessive defense and does not bear criminal responsibility." ”
In a case similar to the Kunshan case, where the aggressor used a murder weapon after committing a fist or foot attack, even if he "hits" with a knife, there is a possibility that it may turn into "stabbing" and "**" at any time, and this kind of infringement can obviously be evaluated as "** meets the conditions of the intensity of the infringement in Article 20, Paragraph 3, Unlimited Defense, so the defense result of killing the aggressor is also permitted by the Criminal Law."
The key issue now is that the criminal law provides that defence is only permitted for "ongoing" violations. What do you mean by "ongoing"?
For example, in the Kunshan case, ** shows that after Yu stabbed Liu twice with a knife, Liu fell to the ground, Yu rushed up and slashed once, and when Liu sat up, Yu slashed again, and after Liu stood up, Yu slashed again. In the end, Liu turned around and ran in the direction of the car, and Yu chased and slashed twice (according to the case announced by **, the two knives were not hit).
So, after Liu was stabbed twice and fell to the ground, has the infringement ended? Are the next few knives targeted at the "ongoing" infringement? Is this case an ex post facto defense? What kind of rules should be followed in similar cases in the future?
In my opinion, on similar issues, it is necessary to grasp three points of comprehensive judgment.
First, whether the aggressor has escaped from the "spot".
The scene here is a concept that comprehensively considers the factors of time and space in a case.
The first is the spatial factor. If the aggressor's escape route is spatially far away from the scene of the fight, and the defender pursues them relentlessly, or even pursues them all the way to the other party's home, even if it is later ascertained that the aggressor intends to go home to get a gun and then return to the scene to commit a second assault, it is impossible for such a situation in which the aggressor is clearly separated from the first scene in space to constitute an "ongoing" violation.
The second is the time factor. Even if the aggressor is not spatially far away, but is always in a state of escape and avoidance at the scene (perhaps running around an obstacle such as a car to dodge), it does not constitute an "ongoing" violation. If the defender finally kills the aggressor after several hours of chasing in circles at the scene, the offense previously initiated by the aggressor shall be considered to have ended. This kind of behavior of chasing and killing the escapee at the scene for a long time exceeds the time limit, dissolves an "ongoing" violation, and is a post-event defense.
In the Kunshan case, according to the facts of the case announced at the scene, even the last two knives that Yu chased and slashed Liu were close to the BMW car, and the space was at the scene of the crime. Yu stabbed and slashed Liu's five knives before, which took 7 seconds. The defender's counterattack was apparently completed at the scene in a very short period of time, so there was no question of the aggressor having left the scene in this case.
Second, whether the infringer has lost the capacity to infringe.
If the aggressor does not flee the scene after encountering defense, then whether the aggressor has lost the ability to infringe and whether there is a possibility of recurrence are important factors in whether the defender can continue to defend. Again, it is necessary to look at this from the perspective of ordinary people who were at the scene at the time of the crime (or even stricter is from the perspective of the individual defender), and not from an objective perspective after the fact.
For example, if the aggressor falls to the ground and struggles to get up, even if it is later found that the aggressor was injured so seriously that it was impossible to continue the fight and was just acting as a show, as long as the average person at the scene of the crime would believe that the aggressor intended and was likely to fight back and that he was still at risk of being attacked, it should be deemed that the unlawful infringement was "ongoing" and the defender should be allowed to continue to defend himself. Taking a step back, even if in hindsight such a situation does fall under the category of "hypothetical defence", the defender should be exempted from liability on the basis of the unavoidable erroneous theory.
In the Kunshan case, Yu stabbed Liu twice after grabbing the knife, and there would not be much controversy in terms of time and intensity. One of the possible points of contention is that after Liu was stabbed twice by Yu, Yu slashed three times in a row when he fell to the ground and stood up again. Are these three knives timely? I think the answer should be yes.
Judging from the scene, after Liu was stabbed twice, he did not show that he had fallen into a state where he had completely lost the ability to fight back and infringe, but quickly got up again. In this regard, the unlawful infringement initiated by Liu cannot be considered to have ended. In the process of Liu getting up, Yu slashed three more times, which is an illegal infringement against the "ongoing". The subsequent facts also proved that after Liu stood up, he still had a brief confrontation with Yu, and only turned around and fled after being slashed again.
At this point, even ordinary people can't see that Liu has completely lost the ability to infringe before turning around and fleeing, and for Yu Mou, who was at the scene of the crime, it is even more impossible to draw the conclusion that "he still attacks knowing that the other party has no ability to infringe". Therefore, Yu's five stabs and stabs in these 7 seconds are always aimed at an "ongoing" illegal infringement, which will not change because Liu was injured and fell to the ground in the process.
Another point of controversy is the two knives that chased and slashed. According to the facts of the case published by **, the last two knives were not slashed.
However, in my opinion, whether the unlawful infringement is cut or not does not affect the determination that the unlawful infringement has not ended. On the one hand, Liu ran towards the BMW car that had taken out the machete** from it. Even if it was later ascertained that there were no other murder weapons in the car, but, as mentioned above, from the perspective of ordinary people at the scene of the crime, the possibility that Liu took out other murder weapons from the car and fought back again. On the other hand, according to the facts of the case announced by **, after Liu was chased and slashed twice, he ran out of the car and continued to run for more than 30 meters before finally falling to the ground. This also shows that when Liu was chased and slashed, he did not show a state of completely losing the ability to resist and attack.
Therefore, in this case, the two knives pursued by Yu X were faced with an infringement initiator who was difficult for ordinary people to determine at the time whether he had lost the ability to infringe, and in this regard, it should be determined that the unlawful infringement was not over, but was "in progress". Even if the last two slashes are hit, they are justified defense.
Third, whether the infringer has waived the intent to infringe.
Another factor in determining whether the defender's words and deeds show that the aggressor still has the intention to continue the aggression or fight back after encountering the defense. In a case similar to Kunshan, a very important factual detail that cannot be understood through ** is what the aggressor said in the process of being chased and fled. People can see the image of the surveillance**, but it is silent.
From the perspective of life experience, in such a sudden and reversal scene, when the two sides engage in fierce confrontation, they often do not fight in silence. In particular, the aggressor, like the Kunshan case, appeared drunk and babbled, took the initiative to provoke and attack, failed to subdue the other party, and then obtained a machete and returned to increase the intensity of the offense.
So, will the aggressor remain silent in the process of being counterattacked by the defender? **Can't be seen. In general, there are several possibilities. One is to continue to threaten and abuse, the second is to admit defeat and beg for mercy, and the third is to be cut stupid and silent.
If it is the first case, when the aggressor falls to the ground or escapes, he still insults or even says threatening remarks such as "wait a minute, I will kill you", which at least shows that the aggressor's frustration is temporary, and he intends to wait for an opportunity**. Therefore, neither his fall to the ground nor his flight are sufficient evidence of his intention to put an end to the aggression he initiated. Unless the aggressor falls into a state of complete weakness with a fairly obvious serious injury and is just trying to "harden his mouth", the defender can be supported to continue to defend.
On the contrary, if the aggressor actively begs for mercy and admits defeat loudly when he falls to the ground or escapes, makes confessional remarks such as "Big brother, I am wrong, I don't dare anymore, you can spare me", or even kneel on the ground and beg for mercy, the judiciary should be extremely cautious about the necessity of continuing to defend and kill.
Although it cannot be completely ruled out that this may be a delaying tactic by the cunning person waiting for the opportunity to counterattack, at least in this case, it is necessary for the defender to provide evidence to show the impedience and falsity of the other party's intention to abandon the infringement. It is also a roadblock to avoid the abuse of the right to defence.
If we talk about life experience, usually a pretending criminal who likes to play in the air, pick quarrels and provoke trouble, and arbitrarily bully others, after suddenly encountering a tough counterattack, may not be able to pull his face down and fall to his knees in front of everyone, repenting and begging for mercy. With this kind of ability to bend and stretch, turn over and pretend to admit cowardice, you can become Han Xin, and you will not die on the street.
Concept renewal
"Justifiable defense is not a boxing match, but a fight against aggression".
Taking the Kunshan case as an example, I put forward several rules for judging the questions that often arise in practice, such as "whether the infringement has ended" or "whether the defense is timely".
Now the question is, why should such a rule be established?
Obviously, there is indeed room for different interpretations as to how to interpret the term "ongoing unlawful infringement" under article 20 of the Criminal Code. This is because the definition of the starting point and starting point of the wrongful infringement cannot be based on the general standard of commencement and completion of the constituent elements. This presents a new interpretive task in addition to the existing relatively stable doctrinal rules. This task has always been open in theory, and as a result, practices are inconsistent and confusing in practice.
"In progress" is a principled provision, within the scope of this flexible space, what specific rules to establish, there is a lot of choice, it cannot be simply said which rule is the only correct interpretation of the law, on the contrary, the rule is to violate the law, or break the rule of law. In this case, the overall value concept of the legitimate defense issue often determines what specific standards and rules the judiciary chooses.
In my opinion, in judicial practice, many cases are not recognized as legitimate defense, and the dominant concept behind it is that the judiciary consciously or unconsciously analogizes the fighting relationship between the aggressor and the defender to a boxing match, so that the "fair play" rules are invisibly applied.
In short, if the opponent hits you with his fist first, you can only fight back with his fist; If the opponent doesn't fight, you have to stop fighting back.
In my opinion, this underlying notion of the defense scene as a boxing match is one of the important reasons why justifiable defense is a zombie clause and must be questioned and criticized.
In the context of various sports competitions, including boxing matches, the premise for the two competitors to enter the arena to face off is to accept the potential risks of the competition out of free will. The consequences of harm that occur under the mutually acceptable rules of the game are justified on the basis of the jurisprudence of the victim's consent or presumed consent.
The rules of fair play established in accordance with this free will choice are, of course, that the two sides are reciprocal, and the point is up to the end, only winning or losing, not life and death. As soon as the other side stops, the other side's attack should also stop. Because under the rules of the game, both sides understand the scale and proportion of each other's advance and retreat.
However, in the case of defense, the origin, the will, and the rules are completely different.
As far as the aggressor is concerned, when he commits an unlawful offense, it means that he has violated the obligation of "not to infringe on others" required by the legal order on his own self-determination, and thus enters into a recognizable and predictable normative risk of encountering a defensive counterattack. The realization of this risk should be regarded as the development of the infringement of the person's personal freedom, and the criminal law should no longer protect it, and the consequences arising therefrom should be borne by the infringer himself according to the principle of self-responsibility.
The intensity of the infringement carried out by the aggressor should be expected and bear the corresponding intensity of counterattack; He committed "homicide, robbery, kidnapping and other violent crimes that seriously endanger the physical integrity" listed in article 20, paragraph 3, of the Criminal Code, which means that he voluntarily signed a consent form to be countered to death.
On the contrary, for the victim of the attack, his defense is not based on his free will, but passively involved in the unilateral aggression initiated by the aggressor, and has to respond to the battle in order to protect his own interests. The so-called "unlawful infringement" is precisely because of the lack of agreement on the offensive that it is distinguished from fighting and fighting. In this case, the defender is the party led by the victim, and there is no willingness to take the initiative to attack, and it is difficult to clearly and accurately assess whether the other party will increase the intensity of the infringement and continue to infringe with the intent to continue the attack.
According to the rules of boxing, if one side falls to the ground and the referee calls to stop, the other side cannot attack again, but waits for the opponent to get up and show that there is still fighting strength before resuming the fight. In judicial practice, the view that once the attacker who has been counterattacked escapes or falls to the ground, the assault is over and the defense must stop, imagines the crime scene as a boxing match.
The problem is that the purpose of the stoppage is to encourage both sides to return to a fair playing situation as long as they can still play. The purpose of the Criminal Law's determination of "the end of the infringement" is precisely to hope that the two sides will completely stop fighting. This is completely different in nature.
If the defense is determined according to the rules of the game, it will lead to a completely undesirable result. Because the infringement was initiated by the aggressor and governed by his will, if the infringement is prematurely ruled to stop and the defender is required to give up the defense, but the aggressor initiates the infringement again, can the law rush to the scene and blow the whistle to stop? If the defender loses the advantage of the situation by giving up the defense, and dies when the aggressor treacherously turns around and re-intrudes, can the law award the deceased a sportsmanship medal of "fair play"?
Over the years, how many cases of murder and murder after the victim were killed, if the victim was suddenly attacked and killed by the victim while the perpetrator was wearing clothes and was not paying attention, according to the current common understanding, the illegal infringement of the offender has ended, and before he shows that he wants to commit the murder, the victim's attack and killing is likely to be determined to be an untimely defense. This is really indignant and powerless logic.
At the scene of a crime, there is no rule against aggravating or repeating the offense. This is because once an unlawful infringement is initiated, it means that the aggressor has intended to enter a place outside the law that does not abide by any rules. What's more, there was no referee on the scene, and those who violated the rules were stopped.
As a defender, only by incapacitating the other party or clearly expressing the intention to abandon the infringement can one protect oneself and avoid falling into unpredictable aggravated and repeated violations. Until then, he should be allowed to continue defending himself because "an unlawful encroachment is ongoing." This is where the rules of defense are completely different from the rules of the game.
Because, if someone breaks through the legal constraints through "unlawful infringement" and leads you into a dangerous situation where you cannot get legal protection in time, the nature of this kind of invading the field of a citizen's rights without consent is a kind of aggression launched by an individual. At this point, you are facing a one-man war.
In this case, it is not the "rules of the game" that should apply, but the "rules of war".
If we do not rely on force to defeat the invaders until they are unable to fight anymore or unequivocally raise the flag and surrender, do we still try to surrender without a fight, move the other side by fleeing without bloodshed, and influence the other side by virtue of benevolence and righteousness? To become a strong, unbullied nation, it is necessary to train everyone to become a citizen who will not flinch from justice.
Article 20 of the Criminal Code, especially paragraph 3 of the right of unlimited defense, should provide not the rules of the game when a person enters the arena on his own initiative and confronts a competitive opponent, but the rules of war when a person passively enters the battlefield and confronts the aggressor.
Therefore, the understanding and application of the provisions of the criminal law must be carried out under the guidance of such a value:
The essence of justifiable defense is not fair play, but right against wrong; Not a boxing match, but a fight against aggression.
*: China Law Review.