The Spring Festival holiday is over.
But the popularity of Spring Festival movies continues.
Among them is the film "Article 20".
Sparking a broad public debate on law and justice.
What is "Article 20".
How justifiable defense is established.
Can officers and soldiers still act bravely?
This post. Xiao Lu will take you to read the article.
What is "Article 20".
Article 20" refers to the justifiable defense clause in Article 20 of the Criminal Law of the People's Republic of China.
The article stipulates that if an act taken to stop an unlawful infringement is taken 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, and causes damage to the unlawful infringer, it shall be regarded as legitimate defence and shall not bear criminal responsibility. Where legitimate defense clearly exceeds the necessary limit and causes major harm, criminal responsibility shall be borne, but punishment shall be commuted or waived. Anyone who takes defensive action against an ongoing crime, homicide, robbery, kidnapping, or other violent crime that seriously endangers personal safety, causing an unlawful offense, is not considered to be in excessive defense and does not bear criminal responsibility.
Why is it also called "Sleep Clause"?
*。Article 20 "stipulates the system of justifiable defence, excessive defence, and special defence. However, in practice, China's judicial organs are extremely strict and strict on the conditions for determining legitimate defense, and from the addition of the special defense system in 1997 to the "murder case of Yu Huan's mother" in 2016, this clause has been almost "idle" for nearly 20 years, which is one of the reasons why this clause is called a "sleeping clause".
Some scholars have pointed out that in judicial practice, judicial personnel are accustomed to believing that when a citizen faces an illegal infringement, he should report it to the unit or judicial organ, and cannot harm the other party at will; When citizens face an imminent threat, they can only report to the unit or judicial organ, but cannot make defensive preparations; Only the act of "simply stopping" the unlawful infringement is justified defense, and if it goes beyond the scope of simple stopping, it is a mutual fight, and the crime of intentional injury or even intentional homicide is established. Moreover, in the traditional concept of Chinese, "the dead and injured are the greatest" has almost become the internal logical basis for determining justifiable defense as intentional injury, which is one of the reasons why judicial personnel will not arbitrarily make justifiable defense judgments.
Is the "Sleeping State" broken?
*。The emergence of the "Yu Huan's Mother Murder Case" in 2016 and the "Kunshan Longge Case" in 2018 gradually broke this situation. Some scholars believe that the "Kunshan Longge case" has broken the "dormant state" of the justifiable defense clause and can be called "the first justifiable defense case in China".
In 2020, the Supreme People's Procuratorate, the Supreme People's Court, and the Ministry of Public Security jointly issued the Guiding Opinions on the Lawful Application of the Justified Defense System (Fa Fa 2020 No. 31), which provides guidance on the application of the justifiable defense system in some cases in practice, such as overly strict or even serious misconduct, stipulating that it is necessary to effectively prevent the erroneous practices of "whoever can make trouble is justified" and "whoever is killed or injured is justified", and resolutely defend the spirit of the rule of law that "the law cannot yield to the lawless".
How justifiable defense is established.
*。According to the provisions of the legislation, the conditions that need to be met for the establishment of justifiable defense include the following five aspects:
First, the causal condition: there must be an actual unlawful infringement;
Second, the time condition: the unlawful infringement must be ongoing;
Third, subjective conditions: must have a sense of defense;
Fourth, the target condition: it must be aimed at the wrongdoer himself;
Fifth, limit conditions: must be carried out within the necessary limits.
Can officers and soldiers still act bravely?
*。As the people's soldiers, we need to keep training at all times in times of peace to wait for the call of the country, but when we encounter the need to act bravely and "take action" in society, how should we ensure that we "retreat" while defending the interests of the people, the public and even the country?
According to the provisions of the Criminal Law, there are two points in determining excessive defense: first, the defensive act clearly exceeds the necessary limit; Second, the results of the defense caused significant damage. For example, when the perpetrator holds a knife or iron rod in his hand and other tools that are relatively lethal compared with those who hold wooden sticks, benches, and other tools that obviously pose a small danger, the nature of the situation is different, and the final conviction and sentencing are also different. If the perpetrator does not have the tools in his hand, he should immediately stop the other party's harmful behavior and control him in the same place.
At present, the state has promulgated more laws and regulations in the aspects of criminal law, civil law and even administrative law to protect the legitimate rights and interests of those who act bravely in the face of justice. At the same time, it should also be noted that, when possible, officers and men should try their best to weigh ways and methods, pay attention to preserving evidence, and avoid putting themselves in situations where it is difficult to prove themselves to the greatest extent.
How justifiable defense is determined.