The box office of the popular movie "Article 20" during the Spring Festival exceeded 1.4 billion, and the film carried out the first performance of China's legitimate defense system at the legal and social levels, which is very down-to-earth and of great practical significance.
What is justifiable defense? Article 20 of China's Criminal Law stipulates that "an act taken to stop an unlawful infringement in order to protect the state, the public interest, the person, property and other rights of oneself or others from ongoing unlawful infringement, and causes damage to the unlawful infringer, shall be regarded as legitimate defense 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."
Justifiable defense is a statutory cause of unlawful obstruction, and there are five conditions for its establishment:
1. Subjective conditions: Legitimate defense requires defensive intent, that is, the defender is required to have a defensive understanding and defensive will. The former refers to the defender's awareness that the unlawful offense is ongoing; The latter refers to the will of the defender to protect legitimate rights and interests.
The motive does not affect the justifiable defence, and it is possible to establish the justifiable defence if it is motivated by a motive that is not noble. I saw Li Si do ** to a lady, it just so happened that Li Si was still my enemy, I was about to beat him, so I just took the opportunity to beat him, and then helped the lady get rid of Li Si's **. I wanted to hit him, but he should have done it, didn't he just catch up! Beat! Here we should also pay attention to the problem of "black eating black", Zhang San wanted to trade with a bag of drugs, and when I found out, I went to rob him of drugs, can Zhang San defend himself? I think it's okay, drugs are contraband, but it also has to be owned by the state! Therefore, it can be justified in self-defense.
Provocation by defense, abuse of the right of defense, mutual fighting, and accidental defense are all acts that do not have the intent to defend and do not constitute legitimate defense.
Defensive provocation - deliberately causing the other party to infringe on oneself in order to infringe on the other party, and then causing harm to the other party on the grounds of legitimate defense. This is commonly known as the "radical method". This kind of behavior has no sense of defense and no will to defend itself, and its purpose is to harm the other party, and it is an intentional crime.
Abuse of the right of defence - the perpetrator directly stops it in a way that is identifiable enough to cause serious injury or death. This act is only known by defense, but not by the will to defense. A young child robs you with a 5-centimeter knife, and you take out a 30-centimeter iron rod and beat him to death. This is a classic abuse of the right to defence. Where an unlawful offense is caused by the perpetrator's gross negligence, and the perpetrator intentionally retaliates by a method sufficient to cause serious injury or death even though other means could be used to avoid the offense, it should not be found to be justified defense. Wu Dalang saw Ximenqing and Pan Jinlian shopping, hitting Ximenqing with a hammer, Ximenqing grabbed a hammer and beat Wu Dalang to death, Ximenqing abused the right of defense, and the lover should run away when he saw his husband! That's the right thing to do!
Mutual brawl - both parties have the intent to infringe on each other's bodies. In this case, neither side has defensive intentions. Mutual brawls and defensive acts are similar in appearance, and in reality, many judges tend to identify defensive acts as mutual brawls. How to accurately distinguish between the two should adhere to the unity of subjectivity and objectivity, and accurately judge the subjective intent and nature of the perpetrator's conduct by comprehensively considering the cause of the case, whether there is fault for the escalation of the conflict, whether it uses or intends to use **, and whether it adopts obviously disproportionate violence.
Incidental defense - the act of a party intentionally infringing on another person, satisfying the other conditions of defense. For example, a female snitch stole a bag of things, Zhang San rushed up to think about her, the female snitch thought that the master was coming, and flew up and kicked Zhang San away. In this case, the snitch had no intention of defending herself and therefore did not constitute legitimate defense.
2. Conditions for causation: The cause of justifiable defense must be an objectively existing unlawful offense. "Illegality" generally refers to acts that are not permitted by law and whose infringement constitutes a crime.
An act taken in legitimate defence to stop an unlawful infringement 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. Because it is, after all, a private remedy, not all illegal and criminal acts can be justified defense, for example: ** dereliction of duty and other crimes that are not imminent, new and offensive and not closely related to individual rights and interests, generally do not apply to the justifiable defense system. It is also possible to defend the mentally ill and minors. In principle, it is an emergency to avoid danger by not attacking animals.
The wrongful infringement must be real. If the defender mistakenly believes that there is an unlawful infringement, it constitutes an imaginary defense, excluding intent, and the perpetrator is negligent, which may constitute a crime of negligence, and the absence of negligence is an accident.
3. Time condition: Only when the unlawful infringement is in progress can legitimate defense be carried out. Here are two questions, when did the wrongful infringement begin? When will it end? It is generally considered that the unlawful offense begins when the offense is committed. "Commencing" is a real and urgent threat to legal interests caused by an unlawful infringement. Preparations for a crime cannot be justified in self-defense. When will it end? Legitimate rights and interests are no longer threatened with real urgency. Specific manifestations: The unlawful infringer has been **, has taken the initiative to stop the infringement, has fled the scene, etc., and is no longer able to cause harmful results or it is impossible to continue to cause more serious consequences. Note that in property crimes, even if the infringement has already been completed, if it is possible to recover the losses in a timely manner, it may be determined that the infringement has not yet ended, and legitimate defense may be conducted.
Defending before or after the above time is considered untimely. Specifically, it is divided into: pre-defense (commonly known as first-strike is strong) and post-defense. Both of these acts have the potential to constitute a crime. As long as the pre-set defense device does not endanger public safety, it does not constitute a crime. For example, burying glass shards in the fence.
3. Target conditions: Justifiable defense can only defend against the infringer. In the case of third-party defense, it may constitute an intentional crime or hypothetical defense, or an emergency evasion.
Fourth, the limit conditions; Justifiable defence must not manifestly exceed the necessary limit and cause significant damage. Otherwise, it constitutes excessive defence. Defence against a violent crime that seriously endangers the safety of the person does not constitute excessive defence. Excessive defense should meet both the conditions of "clearly exceeding the necessary limit" and "causing significant damage", and neither is indispensable.
Whether the defense clearly exceeds the necessary limit shall be judged on the basis of the nature, means, intensity, and harmfulness of the unlawful offense, as well as the timing, means, intensity, and harmful consequences of the defense, and other circumstances, considering the balance of forces between the two sides, based on the situation in which the defender was in defense, and the general perception of the public. It is not possible to open God's perspective, and after the fact, the defender must adopt a counterattack method and intensity that is basically equivalent to that of the illegal offense.
Causing significant harm means causing serious injury or death to the wrongdoer. Where damage is caused to a minor injury or less, it is not a major injury.
Excessive self-defense shall be subject to criminal responsibility, but punishment shall be mitigated or waived.
Justifiable defense is not "countering violence with violence", but "countering injustice with righteousness". The main significance of justifiable defense is to protect the public interest and other legitimate rights and interests from ongoing illegal infringements, to encourage citizens to fight against ongoing illegal encroachments, and to deter criminals from acting rashly. Therefore, it is necessary to handle cases fairly, resolutely defend the spirit of the rule of law that "the law cannot yield to the lawless", encourage righteousness and courage, and promote social righteousness. It really "awakens" the "sleeping clause" of the criminal law on justifiable defense.