With the national hit of the movie "Article 20" during the Spring Festival, the justifiable defense clause of Article 20 of the Criminal Law has once again aroused heated discussions in all walks of life. In recent years, Article 20 of the Criminal Law, which has been "sleeping," has been gradually "awakened," from the lawful and accurate handling of legitimate defense cases with relatively large social impact, such as the Kunshan anti-homicide case, the Fuzhou Zhao Yu case, and the Laiyuan anti-homicide case, to the promulgation and implementation of the "Guiding Opinions on the Lawful Application of the Legitimate Defense System" of the "Two Supreme People's Courts and One Section." However, in judicial practice, there are still great difficulties and pain points in the application of the justifiable defense system, and how to make Article 20 of the Criminal Law truly the most powerful legal guarantee for legitimate defense and those who act bravely in the face of justice still need the joint efforts of scholars, judicial personnel, and defense lawyers.
In this context, in order to further play the role of defense lawyers in actively promoting the accurate application of the justifiable defense system, on the afternoon of February 26, 2024, the "Article 20" Symposium on Criminal Law jointly organized by the Dacheng Criminal Professional Committee and the School of Criminal Justice of China University of Political Science and Law was successfully held at the Graduate School of China University of Political Science and Law in Beijing, with nearly 140 people from all over the country, including experts and scholars, colleagues in the legal field, college students, and people from all walks of life, attending the meeting. This seminar is honored to invite more than 10 theoretical scholars and practical experts to focus on the justifiable defense system and directly address the hot topics in society.
Under the chairmanship of Professor Wang Zhiyuan, Vice Dean of the School of Criminal Justice of China University of Political Science and Law, the seminar officially kicked off. Professor Wang greatly affirmed the positive response and discussion of this seminar, and solemnly introduced the guests and expressed his sincere welcome and gratitude.
Speeches. 
Picture: Professor Liu Yanhong.
Professor Liu Yanhong, Dean of the School of Criminal Justice of China University of Political Science and Law, pointed out in her opening speech that the upsurge aroused by the movie "Article 20" in society has aroused great concern among the public about the relevant provisions of Article 20 of the Criminal Law of China. This clause has been controversial in both theoretical and practical circles, and has put forward extremely high requirements for the criminal law of relevant practitioners. Professor Liu emphasized that all parties should take a rigorous and pragmatic attitude to deeply study the legal basis and practical application of this provision, and make positive contributions to the improvement of China's criminal law system. At the end of his speech, Professor Liu extended a warm welcome to the professors and lawyers of the University of Law who attended the seminar, and wished the seminar a complete success.
Lawyer Lou Qiuqin.
Lawyer Lou Qiuqin, the leader of the Criminal Committee of Dacheng and the co-head of the Criminal Group of the Beijing Office, said in her speech that first of all, as a Master of Criminal Law and a Doctor of Procedural Law of the University of Law, I would like to express my gratitude to my alma mater for holding such a seminar, especially for the strong support of Dean Liu Yanhong and Professor Gu Yongzhong, doctoral supervisor of the Criminal Division, as well as other experts and scholars. Secondly, from the experience of criminal defense and the experience of academic research, the difficulties and pain points in the application of Article 20 of the Criminal Law in practice are described. Finally, I wish the seminar a complete success, and look forward to the insightful views of the speakers, and hope that the full collision between theory and practice can form some rules, provide guidance for the application of Article 20 of the Criminal Law in practice, and contribute to the progress of the rule of law and the maintenance of social fairness and justice.
Discussion Session 1.
Picture: Professor Yu Chong.
The first discussion session was chaired by Professor Yu Chong of China University of Political Science and Law. Professor Yu took the typical cases in the development process of China's justifiable defense system as the introduction point, and briefly sorted out the context and key nodes of the development of the justifiable defense system.
Picture: Professor Gu Yongzhong.
Professor Gu Yongzhong of China University of Political Science and Law pointed out in his speech that the discussion on the justifiable defense system has endured since the last century, but there are more or less cognitive biases in theory, legislative promotion and judicial practice, and no consensus has been reached. Especially in the field of judicial practice, there is a big gap between the adjudication results of many cases and the people's simple concept of justice and ideal judicial concept, and the underlying reason is that the existing research still lacks a deep understanding of the justification basis for justifiable defense. Professor Gu further pointed out that the justification of justifiable defense arises from the act itself, which is embodied in five urgencyes, which should be summarized in the analysis and determination of justifiable defense: First, the implementation of justifiable defense is based on the fact that the public interest of the state and society, the safety of citizens' lives and property, and other legitimate interests are being unlawfully infringed. Unlawful infringement includes, but is not limited to, criminal conduct. Second, if such infringements cannot be stopped in a timely, effective and decisive manner, the national public interest, the security of citizens' property and other legitimate interests will face irreparable losses. Third, in the face of illegal infringements, the powerful public power of the state cannot stop and protect them in a timely and effective manner. Fourth, only by giving citizens the right to take necessary measures in a timely manner to stop the illegal infringements that are taking place and being carried out can we truly ensure that the relevant legitimate rights and interests are not infringed upon. Fifth, when faced with a sudden unlawful offense, it is difficult for the perpetrator to fight back under conventional cognitive conditions, and it is also difficult to rationally control the limits of defense. In the handling of specific cases, the requirements for defenders should not be too harsh.
Picture: Professor Wang Ping.
Professor Wang Ping's speech at China University of Political Science and Law mainly covered the following three aspects: First, taking the two film and television works "Qiu Ju's Lawsuit" and "Article 20" as the starting point, Professor Wang Ping deeply analyzed how to correctly deal with the problem of illegal infringement in the specific environment and the background of the times. Secondly, Professor Wang Ping analyzed the changes in the justifiable defense clause in the Criminal Law from 1979 to 1997, and pointed out that there is still a gap between the legislation that keeps pace with the times and the judiciary that remains the same. The 1997 Criminal Law expanded the scope of legitimate defense, gave more rights to citizens, and gave more preferential sentencing treatment for excessive defense, reflecting the spirit of the rule of law in urban civilization. The activation of laws often does not depend on specific individuals or events, and the fundamental driving force behind them lies in the progress of the times. Finally, Professor Wang Ping took the cases in Article 20 as an example and used the purpose of normative protection as a guide to explain in detail how to properly solve the technical challenges in the application of the justifiable defense clause.
Pictured by Associate Professor Guo Zhilong.
Guo Zhilong, associate professor of China University of Political Science and Law, conducted an in-depth discussion on the issue of the limit of legitimate defense. He cited the "Yu Huan case" and the "Kunshan Longge case" as two typical justifiable defense cases, pointing out that in the case of causing serious injury or death to others, the issue of determining special defense has been resolved to a certain extent, but in the defense of ordinary violence, there is still controversy over whether the state can recognize the major defense caused to others, and whether the infringement of personal freedom can establish legitimate defense. Justifiable defence is not only a matter of relations between the two citizens, but also of relations between the State and its citizens. The state should not only exert strong control over violence against the person and unlawful infringement of personal liberty through the process of decriminalization, but also empower citizens to carry out strong defenses. As long as it is necessary to achieve the goal of stopping physical assault, in principle, there is still the possibility of determining that the corresponding high-intensity violence is justified defense. If the definition of justifiable defence is too restrictive, national governance will face greater challenges.
Picture: Lawyer Wang Yong.
Lawyer Wang Yong, co-leader of the Dacheng Criminal Committee and head of the criminal team of the Jinan Office, introduced a case of justifiable defense "anti-homicide" that he personally handled, and truly restored the facts of the case and the controversy and heated arguments between the prosecution and defense on the application of justifiable defense, excessive defense and special defense, and pointed out that one of the difficulties in the application of justifiable defense in practice lies in the determination of the defense limit. Lawyer Wang pointed out that whether the justifiable defense obviously exceeded the necessary limit should be comprehensively judged based on the subjective psychological state of the aggressor, the degree of danger of the unlawful infringement, and the means, intensity, and personnel of both parties. Mr. Wang believes that every case adjudicated by judicial adjudication has a value orientation and value orientation, and has a demonstration effect. Judicial adjudication should not only be rational, but should also respect public opinion, have warmth and conscience. Public opinion is the simple will of the people, and it is also the most basic value, such as punishing evil and promoting good, and it is not possible to "anyone who makes trouble is justified" and "whoever is killed or injured is justified".
Picture: Lawyer Li Yuejia.
Lawyer Li Yuejia, director of the Dacheng Criminal Committee and head of the criminal team of the Changchun Office, pointed out based on his previous work experience in the procuratorate that Article 20 was awakened after so many years of "sleeping" for the following reasons: First, the complexity of the evidence in the actual file and the difficulty of collecting evidence. Real cases in reality are completely different from cases presented in textbooks that determine evidence and facts, and the facts of the case need to be analyzed and judged through evidence; the second is the inherent presumption of guilt thinking of judicial personnel; The third is the pressure of public opinion faced by the judiciary and the need to maintain stability. In practice, the premise that many cases can be withdrawn or not prosecuted is that a settlement is reached with the victim, and there will be no negative impact on the victim. Lawyer Li believes that there is no clear boundary between the determination of urgency and wrongdoing, which requires judicial personnel to handle each case with a more humane concept and avoid mechanical justice.
Session 2.
The first half of the second session of the discussion session was chaired by Professor Wang Ping of China University of Political Science and Law.
Picture: Professor Yu Chong.
Yu Chong, a professor at China University of Political Science and Law, believes that the application of the justifiable defense system should be understood from two levels with a hierarchical thinking. The first is the functionalist perspective. The justifiable defense system is not only a normative judgment, but also a value judgment, based on different concepts of the times and different criminal policy considerations, which determine the scope of application of the justifiable defense system, the loosening of conditions, etc., and the current era is undoubtedly moving towards relaxation compared with the past. The second is the perspective of justification. As an act of lethality or "brawl" that has been empowered, justifiable defense should be recognized as established as long as the first level is met and there are no negative conditions (untimely, obviously exceeding the necessary limit to cause significant damage, etc.). As the first to act, the defender should not set too low a requirement for the negation condition, that is, it is difficult for the law to be strong, whether it is based on the risk that the defender is in danger of falling into himself, or the defender's right to defend misjudgment, or whether the defender is in a superior position of legal interests, or the "right to act later" granted by Tang Law's deliberation.
Picture: Associate Professor Yang Xufeng.
Yang Xufeng, an associate professor at China University of Political Science and Law, believes that in recent years, the academic community has formed several approaches to activate the justifiable defense clause. First, we should pay attention to the dual constraints of behavioral limits and outcome limits to avoid the indiscriminate application of excessive defense; Second, it reflects on the fundamental causes of consequentialism in practice, and clarifies and even reconstructs the justification basis of justifiable defense in terms of legal basis. Third, it advocates excessive defense, so that subsequent pursuits and other behaviors have the opportunity to be considered as excessive defense as a whole; Fourth, expand the scope of application of special defenses, such as flexibly understanding that "** focuses on the cumulative increase in the risk of continuous violations, etc.; Fifth, innovative theories such as defensive emergency avoidance and the end feature of serious unlawful infringement are introduced, and the time requirement is relaxed.
The second half of the second session of the discussion session was presided over by lawyer Lou Qiuqin, the leader of the Dacheng Criminal Committee.
Picture: Lawyer Li Hongxin.
He pointed out that the main reason why Article 20 of the Criminal Law has become a zombie clause and there are so many cases that dare not be applied is that the judicial concept and the evaluation mechanism of the judicial organs, as well as the incomplete implementation of the judicial principle of "no doubt of guilt", and the expectation that the judicial organs can have responsibility and feelings, and dare to apply the law correctly. Finally, Mr. Li suggested that the phrase "ongoing unlawful infringement" in Article 20 should be added to "possible real and imminent danger", so that the adjudication of some judgments can be based on the law. To sum up, legal people should have awe, responsibility and responsibility, so that every citizen can truly feel fairness and justice, and truly promote the healthy development of China's rule of law.
Picture: Lawyer Yu Yaowu.
Lawyer Yu Yaowu, director of the Dacheng Criminal Committee and head of the criminal team of the Jilin Office, described the special defense case he defended caused by domestic violence, and due to the influence of the judicial concept of "consequentialism", in the three stages of investigation, prosecution and trial, he was convicted of intentional homicide, and did not adopt the lawyer's opinion that it is a special defense and does not bear criminal responsibility, and was finally sentenced to three years in prison. The outcome of this case seems to balance the determination of guilt and non-guilt with the severity of the punishment, but in fact it violates the true value judgment of the criminal law. Subsequently, lawyer Yu also summarized the factors and adjudication rules that should be considered in determining the special defense caused by domestic violence in conjunction with the case, and called on the legal professional community to uphold determination, oppose mechanical justice, promote active justice, and earnestly implement Article 20 not to be misused and misunderstood, so as to enhance the sunshine of the rule of law and illuminate the judicial process.
Picture: Lawyer Li Yonghui.
Li Yonghui, a member of the Dacheng Criminal Committee and a lawyer from the Shijiazhuang Office, agrees with Professor Wang Ping's view on the time of defense, saying that the law should give certain "preferential treatment" to the defender in terms of the time of defense, and cannot be harsh and aggravate the defender's obligations. The innocence in the movie "Article 20" is the final innocence and non-prosecution under the attention and guidance of the Supreme People's Procuratorate. In fact, whether it is the previous Yu Huan case or the Kunshan Longge case, it is a turning point that only has attracted the attention of the Supreme People's Procuratorate or higher-level organs after fermentation, which is also the norm and helplessness of judicial practice. Judges are under a lot of pressure when handling such cases, on the one hand, because of the injured party's out-of-control emotions, and on the other hand, because of the correct implementation of the law. I hope that "the law cannot give way to the lawless" can become the norm in society, and may our rule of law get better and better!
Interactive sessions. After the discussion session, it was time for an interactive session. The directors of the Dacheng Criminal Committee also responded to and answered the students' questions one by one.
Zhao Qingyang, a member of the Dacheng Criminal Committee and a lawyer from the Shenyang office, said from his experience as a judge that the most difficult issue in practice is whether objective facts can be determined through evidence. In evidentiology, legal truth is not exactly the same as objective truth. We can learn from the "Non-Concession Act" of the United States, citizens enjoy the right not to back down, and now that the awareness of citizens' rights has awakened, we can determine the boundaries of citizens' right to defense through more detailed legislation in the future.
Lawyer Zhao Yehong, co-leader of the Dacheng Criminal Committee and head of the criminal team of the Xi'an office, pointed out that the long-term and stable realization of fairness and justice depends not only on the judicial organs, but also on the joint efforts of academics, legal circles and all sectors of society. At the same time, lawyer Zhao Yehong believes that the heated discussion caused by the image of the public security, procuratorate, and lawyer of the film should be viewed dialectically, and whether it can promote the public's attention to the rule of law should become the mainstream evaluation standard, and the relevant departments can also promote the progress of the rule of law by jointly producing more excellent film and television works that promote the resolution of related problems.
Closing Summary. Picture: Professor Wang Zhiyuan.
Professor Wang Zhiyuan, Deputy Dean of the School of Criminal Justice of China University of Political Science and Law, pointed out in the closing summary that the speeches of today's guests were very comprehensive and wonderful. The movie "Article 20" is based on the "Guiding Opinions on Justifiable Defense" of the two Supreme People's Courts and the first section of the Supreme People's Court under the promotion of the Huan case and the Yu Haiming case, which once again increased the discussion of the justifiable defense system. However, under such enthusiasm, there is still a danger that the application rate of justifiable defense clauses in judicial practice is low. The fundamental reason for this is that the balance in the judiciary is excessively skewed towards the system makers, and the equity enjoyed by the judiciary is insufficient. Therefore, the further refinement and formulation of discretionary rules may not be a fundamental solution to the problem of the application of the justifiable defense clause, and the key to activating the application of the justifiable defense clause is to fully and reasonably give judicial officers the right of equity and stimulate their subjective initiative to apply the provision. Finally, Professor Wang sincerely congratulated the symposium on its success.
Professor Liu Yanhong, Dean of the School of Criminal Justice, China University of Political Science and Law, once again congratulated the seminar on its success and expressed her heartfelt thanks to the guests and conference staff in her closing summary. Professor Liu pointed out that today's event is also a warm-up event, and the Criminal Defense Innovation and Development Research Center of China University of Political Science and Law will also strive to create a series of blockbuster activities of "China University of Political Science and Law Defense Lecture Hall", inviting top experts in criminal defense business to participate in criminal defense events, promote the prosperity and development of criminal defense, and expand the influence of China University of Political Science and Law in the field of criminal defense. We invite all guests to participate actively. Finally, Professor Liu Yanhong wished the guests a smooth career.
Group photo.
So far, the "Article 20" symposium of the Criminal Law has come to a successful conclusion in warm applause, and the dry goods shared by the guests, including practical and theoretical analysis, which are wonderful, leaving valuable knowledge achievements for promoting the accurate application of the justifiable defense system.
Group photo.
In the future, the Dacheng Criminal Committee will continue to strengthen close cooperation with China University of Political Science and Law and other universities to promote the integration and promotion of legal theory research and practice, and contribute to the development of China's criminal law.