Comics: Yan Qingxiong.
As a legal movie, the Spring Festival holiday movie "Article 20" is an unusual "fire". Article 20 refers to Article 20 of the Criminal Law of the People's Republic of China, which deals with legitimate defense, excessive defense, and special defense. Over the years, "anti-homicide cases" involving legitimate defense have attracted widespread attention from society, and whether they are justified defense or "countering violence with violence" has repeatedly aroused controversy. In this issue of "Thinking and Debate", three guests are invited to discuss this topic.
Guest of this issue
Zuo Deqi (Professor, School of Law, Shenzhen University).
Zhang Jisheng (Senior Partner and Lawyer of Yingke Law Firm).
Wang Lin (legal worker, senior ** person).
q
Article 20 of the Criminal Law is often referred to as the "sleeping clause", mainly because it has not been well applied for a long time. What do you think are the reasons for the low rate of justifiable defense? What is the difficulty in determining justifiable defense in judicial practice?
Wang Lin:Justifiable defence had become an important institution in 1979 when the Penal Code was enacted, but at that time the provisions were crude and the scope of discretion was too broad. When the Criminal Law was amended in 1997, a major revision was made to the provisions on justifiable defense, changing the original provision that "justifiable defense exceeds the necessary limit and causes undue harm" to "justifiable defense clearly exceeds the necessary limit and causes significant damage", and clarified the right of unlimited defense. The justifiable defense clause formed by this revision is "Article 20".
Judging from the direction of the amendment, it is necessary to encourage citizens to exercise their right of legitimate defense by relaxing the limits and conditions for legitimate defense. Although the legislation is deliberately relaxed, the generalization and abstraction of the expression still exists. What counts as "obvious"? Under what conditions is "necessary"? What is the degree of damage that is "significant"? These need to be determined by specific judicial personnel based on the facts of the case and judicial interpretations.
At the judicial and social levels, unspoken rules such as "fighting back means beating each other", "death is greater", "whoever makes trouble is justified", and "justice is distributed according to trouble", which has brought a certain impact on the application of the justifiable defense system in theory and **. The three cases involved in the movie "Article 20" have not escaped the cruel reality of "distributing justice according to trouble" from beginning to end. Justice is mainly obtained by "making trouble" or even relying on "life", rather than by the impassioned "law cannot yield to lawlessness".
Zuo Deqi:First, such cases are susceptible to extrajudicial factors. The erroneous understanding that "whoever can make trouble is justified" and "who is killed or injured is justified" affects the judgment of the public, and the judicial organs are very cautious in applying legitimate defense under pressure. Second, in the legal determination, the judicial organ's determination that the establishment of justifiable defense must simultaneously meet the conditions of causation, time, object, intent, and limit. The determination of each condition needs to be substantiated by sufficient evidence, and needs to be comprehensively considered in combination with the possible reactions of ordinary people in similar situations. However, judicial personnel usually judge the defender according to the situation reflected in the evidence, and judge the defender with calm, rational, objective and accurate standards after the fact, so it is difficult to draw a conclusion of legitimate defense.
Zhang Jisheng:There are two internal and external factors for the low rate of justifiable defense. The internal factor lies in the personal philosophy and thinking of the case-handling personnel; The external factor is that the case-handling personnel face various assessments in their work, and if the consequences such as petitions or ** are caused by the cases they handle, they may face accountability. Therefore, the difficulty in determining justifiable defense in judicial practice lies in the fact that, in order to avoid being held accountable, case-handling personnel will choose to closely follow the evidence and tighten the "picking" of the law, even if the case-handling personnel have formed an inner conviction of the facts and punishment of the case based on their own professional knowledge, trial experience and social experience, they can only choose to take a step back in order to avoid risks.
q
In the face of illegal infringement, it is necessary to let people dare to "defend" and dare to "act bravely". In judicial practice, how to accurately determine the limit of defense so that Article 20 can be effective?
Wang Lin:Concept and method, concept first. Only by correcting deviations and breaking away from the anti-rule mentality of "distributing justice according to trouble" can we start with ways and means to accurately apply Article 20. Most of the time, the defender is faced with a sudden attack. From the point of view of effectiveness, the defense must exceed the intensity of the violation, otherwise it will be counterproductive, and if the defense fails, there is a high probability that it will suffer greater damage. Specifically, when judging the limits of defense, it is necessary to adhere to the principle of "comprehensive review and comprehensive judgment." It is not possible to simply observe the comparison between "law" and "lawlessness" at a specific time period or even a specific moment, but should synthesize the cause and course of the case, as well as the respective characteristics of the perpetrators (such as the comparison of the number of people on both sides, the comparison of forces, the comparison of tools, etc.) and the environment at the time. It is not advisable to demand that the defender must take a counterattack in a manner and intensity that is basically equivalent to the unlawful offense. The law should not yield to lawlessness, and the law should not make it difficult for others. After all, the vast majority of defenders do not possess peerless magical skills, and they can point and hit wherever they want, and the strength is just right.
Zuo Deqi:In judicial practice, two elements should be considered: whether it clearly exceeds the necessary limit and causes significant harm. Whether the defense clearly exceeds the necessary limit shall be judged based on the nature, means, intensity, and degree of harm of the unlawful offense, as well as the timing, means, intensity, and harmful consequences of the defense, and other such circumstances, considering the balance of forces between the two sides, based on the circumstances in which the defender was in the defense, and in consideration of the general public's perception. In judging the degree of harm caused by an unlawful offense, it is necessary to consider not only the harm already caused, but also the imminent danger and actual possibility of causing further harm. The defender should not be required to respond in a manner and intensity that is substantially equivalent to that of the unlawful offense.
When it comes to causing major harm, it means causing serious injury or death to the unlawful offender. Where minor injuries or less are caused, it is not a major injury. It cannot simply be assumed that the result of serious injury or death constitutes excessive defence, and the aforementioned factors need to be taken into account.
Zhang Jisheng:When the defender is suddenly violently assaulted and there is an imminent danger and real possibility of further damage, the defender is highly mentally stressed and physiologically in a state of stress, so it is difficult to make a rational and accurate judgment of the objective state, and it is impossible to accurately grasp the limits of defense. In this case, if it is due to panic and misjudgment of the situation at the scene, resulting in excessive defense, it should not be considered excessive defense at this time.
q
It is necessary to improve the status quo of "timidity" in the application of legitimate defense, and it is also necessary to prevent overcorrection and moving toward the other extreme of "countering violence with violence." In your opinion, how can the right to defence be prevented from being abused?
Zhang Jisheng:In the course of judicial practice, it is necessary to accurately grasp the boundaries and judge whether the perpetrator's conduct is justWhether or not defensive acts are carried out for the purpose of protecting legitimate and lawful interests, and for illegal and criminal acts that are actually unlawful infringement in the name of self-defense, it is necessary to resolutely avoid designating them as legitimate defense.
Wang Lin:The correct determination of justifiable defense in accordance with the law itself entails the requirement of preventing overkill. It can be seen from Article 20 of the Criminal Law and relevant judicial interpretations that excessive defense must meet both the two conditions of excessive conduct and excessive results, and both are indispensable. In a specific defense situation, the defender is usually highly nervous in the face of sudden aggression, and sometimes he is defending himself with a physiological stress response, and he is required to be objective, rational, and precise when taking defensive behaviors.
Zuo Deqi:Judicial organs should comprehensively review the facts and evidence, and when making judgments, they should accurately and meticulously explain the basis and reasons for the handling of the case, centering on the focus of the case dispute and social concerns, and demonstrate the objectivity, fairness, and accuracy of the determination of the facts of the caseExplain reasonableness, reflect the harmony of legal reasoning and feelings, conform to the mainstream values of society, increase the acceptability of judgment results, and achieve the organic unity of legal and social effects.
(Moderator: Zhao Xin).