I. Interpretation of the right of defense clause
In order to encourage citizens to be brave, punish crimes and protect the interests of defenders, the third paragraph of Article 20 of the Criminal Law stipulates the right of special defense. However, the legal terms of the Provisions on the Establishment of Special Defense Rights are not standardized and their meanings are unclear. In complex criminal cases, the right of special defense may be abused, which is not conducive to the protection of human rights. To this end, it is necessary for the author to explain this clause:
(a) what is "murder".
In modern Chinese vocabulary, "doing" means "actually doing and expressing actions". "Fierce" means "the act of killing or injuring people". "Beating" is a common term used by the masses. Its connotation and extension are unclear and its semantics are vague. It can refer to general illegal acts such as hitting or beating others with fists, causing trouble, and also includes crimes such as murder, robbery, rape and kidnapping. There are different opinions about the meaning of "beating". The first one is "hurting people" [1], and the second one is "a serious violent act that cannot be judged as a specific violent crime that seriously violates citizens' personal rights" [2]. The third kind refers to the crime of intentional injury [3], the fourth kind is understood as "violent murder with a weapon" [4], and the others are understood as "injury and murder". "Beating" is not a legal term, the meaning of "beating" is not clearly defined in law, and there is no charge of "beating" in criminal law, but criminal legislation juxtaposes "beating" with "murder, robbery, rape and kidnapping", which seems to have a special purpose. The author thinks that the first understanding is biased, and the word "injury" of "hurting people" refers to "injury". Injury includes physical injury and mental injury. According to the third paragraph of Article 20 of the Criminal Law, although injury only refers to physical injury, the word "injury" is colloquial and has a wide connotation, which does not conform to the norms of criminal law terminology. The third understanding has limitations. If "beating" means "intentional injury", why not directly stipulate it in the provisions? Eight crimes that do great harm to society are intentional homicide, intentional injury, causing serious injury or death, rape, robbery, drug trafficking, arson, explosion and poisoning. Article 17 of the Criminal Law stipulates that "a person who has reached the age of 14 but under the age of 16 shall bear criminal responsibility". Why is the third paragraph of Article 20 of the Criminal Law not applicable? The defense object of special defense right is explicit violent crime. Although "drug trafficking, arson, explosion and poisoning" do great harm to society, it is not necessarily achieved by explicit violent means, and legislators have not included "drug trafficking, arson, explosion and poisoning" in the third paragraph of Article 20 of the Criminal Law, which shows that the meaning of "injury crime" is deep. The fourth understanding is not accurate either. The nature of the "attack" shows that the use of the murder weapon is simple and the degree of violence is unknown. If the victims are given special defense against such illegal infringers, it may damage the just value of criminal law at the expense of the human rights protection of illegal infringers and violate the humanitarian spirit. The fifth kind of understanding violates grammatical logic. If "beating" includes "intentional injury" and "intentional homicide", why does the third paragraph of Article 20 of the Criminal Law stipulate "beating" and "intentional homicide" side by side? The meaning of "injury crime" should be explained in combination with "violent crime" and "harm" "The crime of injury" should be a violent crime and endanger personal safety. It goes without saying that the second understanding is more in line with the spirit of criminal legislation, but it still has some shortcomings and cannot reveal the "seriousness" of "serious violence". Combined with the opinions of various factions, the author believes that "beating" refers to the intentional implementation of violent criminal acts that are fatal to others or seriously endanger their personal rights.
(2) Understanding of "murder, robbery, rape and kidnapping".
Does "murder, robbery, rape and kidnapping" stipulated in the third paragraph of Article 20 of the Criminal Law refer to four specific crimes, or do they refer to criminal acts with the same criminal means or the same criminal nature as these four crimes? Some scholars believe that these four crimes refer to both specific charges and four criminal means [5]. The author thinks that "murder, robbery, rape and kidnapping" here should refer to four violent criminal means, such as anesthesia rape and robbery (armed robbery) stipulated in Article 267 of the Criminal Law. These crimes will not endanger life safety, and it is against the legislative purpose to allow the implementation of special defense rights. If it refers to specific crimes that violate the criminal law by four means, then "murder, robbery, rape and kidnapping" should be understood in a broad sense.
First, "murder" not only refers to murder in the usual sense, but also includes the act of coercing the victim to kill by means of arson, explosion and poisoning. Why are you threatening him here to his face? If the victim was not killed by arson, explosion, poisoning, etc. In front of the victim, it is impossible to know whether the violent crime is going on or not, and it is impossible to correctly grasp the applicable time of defense, which may lead to pre-defense or post-defense
Second, "robbery" should not only be understood as robbing ordinary property, but also as robbing special articles and contraband, such as the crime of robbing guns, ammunition and explosives as stipulated in Article 127 of the Criminal Law, the crime of hijacking aircraft as stipulated in Article 12 1, and the crime of hijacking ships as stipulated in Article 122.
Thirdly, "rape" includes not only the crime of rape as stipulated in Article 236 1, but also the act of buying abducted women as stipulated in Article 24 1, paragraph 2.
Fourth, the crime of kidnapping should not only refer to the crime of kidnapping as stipulated in Article 239 of the Criminal Law, but also include other crimes committed by kidnapping, such as the crime of abducting and selling women and children as stipulated in Article 240 of the Criminal Law.
Fifth, to understand the four crimes in a broad sense, we should also understand the transformation from other crimes to these four crimes. Violent illegal detention as stipulated in Article 238, paragraph 2 of the Criminal Law turns death into homicide, rape as stipulated in Article 24/Kloc-0, paragraph 2, and transformed robbery as stipulated in Article 269, but it does not include transformed armed robbery as stipulated in Article 267, paragraph 2. The crime of robbery stipulated in the second paragraph of Article 267 is a special provision in criminal legislation. There is no obvious violence in this crime (see below for the explanation of the meaning of violence), so special defense right should not be given.
(3) Interpretation of "other violent crimes that seriously endanger personal safety".
First, according to the legislative spirit of foreign laws and the provisions of the third paragraph of Article 20 of the Criminal Law, the personal rights referred to in "personal safety" should include "the right to life, the right to body and the right to chastity".
Second, what does "other" mean? "Others" here should be violent acts other than "beating, killing, robbery, rape and kidnapping", because there will not be two general words with compatible relations in the same law, otherwise "similar items" should be merged. "Others" is the omission and generalization of specific violent crimes stipulated in the criminal law and a means of criminal legislation. It is unrealistic and unrealistic to list the objects of special defense right one by one, and it can be stipulated by following general principles. However, its scope is clear. Lawmakers listed four typical violent crimes, such as murder, robbery, rape and kidnapping, and used an inclusive word "other" to express the omission and generalization of all violent crimes. At the same time, the four typical crimes of violent crimes listed in the law are reminders of the contents summarized by "others". In addition, the degree of "other" violent crimes should reach a level that seriously endangers personal safety.
The author believes that "others" should include the crime of endangering flight safety by violent means as stipulated in Article 123 of the Criminal Law, the crime of forced trading as stipulated in Article 226 of the Criminal Law, the crime of intentional injury as stipulated in Article 234 of the Criminal Law, the crime of compulsory molestation of women as stipulated in Article 237 1 of the Criminal Law, the crime of illegal detention as stipulated in Article 238 of the Criminal Law, and the crime of provocation and trouble as stipulated in Article 293 of the Criminal Law. The crime of obstructing testimony stipulated in Article 307 1 of the Criminal Law, the crime of robbing the escorted person stipulated in Article 3 16 of the Criminal Law, and the crime of riot and escape stipulated in Article 3 17 of the Criminal Law,
Third, how to grasp the "serious danger"? "Endangered" means "harmful or dangerous". In criminal judicial practice, "harmfulness" should mean that illegal infringement may damage the personal safety of defenders, rather than taking the personal safety of defenders as the standard. The concept of "danger" here is a concept of probability, not a concept of self-probability. Our country is based on the principle of the unity of subjective and objective. To correctly grasp the meaning of "harm", we should not only combine the principle of unity of subject and object, but also look at the severity and intensity of violence. "Serious" and "harm" are inseparable. "Severity" modifies the intensity of violent means, and the standard for judging the severity should be based on the situation of the defender, that is, "the defender is fatally injured or his life safety is threatened urgently" [6]. In addition, on the one hand, the degree of violence of crimes can be determined according to the nature of violence, such as beating, killing, robbery, rape, kidnapping and so on. , usually in the form of violence. On the other hand, it can also be determined according to the consequences of violence, combined with the statutory punishment range stipulated in the criminal law. If the statutory minimum penalty is fixed-term imprisonment of more than three years, it can be shown that these violent crimes are serious, and if the statutory maximum penalty is fixed-term imprisonment of less than three years, it can be shown that these violent crimes are not serious and belong to light violent crimes. For example, the crime of violent interference with freedom of marriage stipulated in Article 257 of the Criminal Law, the crime of obstruction of official duties stipulated in Article 277 of the Criminal Law, the crime of violent evidence collection stipulated in Article 247 of the Criminal Law, and the crime of destroying elections stipulated in Article 256 of the Criminal Law. How to master "danger"? "Endangering" is the degree of modification of the consequences of violence. Subjectively, "danger" is enough to make defenders feel that danger is coming and panic. Objectively speaking, "danger" may turn into the urgency of damaging "reality". To grasp the meaning of "harmfulness", we can do it according to the following formula: realistic possibility of damage+urgency = "harmfulness", that is to say, if the existence of a violent crime is enough to make the personal rights protected by law suffer irreparable losses at any time, then it can be said that the violence suffered by personal rights at this time is in a serious danger state.
Fourth, the explanation of "violent crime". "Violence" means that the wrongdoer beats or forces the defender's person. Criminal law stipulates that there are many charges of violent crimes, so it is impossible to exercise special defense rights for every violent crime, otherwise it will undermine the fair value goal of criminal law. Here, "violent crime" is a specific violent crime, which can be manifested in tangible forms (explicit violence). Only when this violent crime has reached a level that seriously endangers personal safety can defenders be allowed to exercise special defense rights against illegal infringers. If the wrongdoer fails to commit explicit violence, the defender can't know whether the violation seriously "endangers" personal safety, and generally can't apply the special defense clause, but can only apply the general defense right, that is, the right of legitimate defense. In addition, the criminal form of "violent crime" here should be attempted. If the crime is completed, on the one hand, the behavior of "violent crime" has stopped at this time, and if defense is allowed, it is also post-defense, which is easy to cause defenders to abuse their defense rights; On the other hand, if we exercise the right of defense against criminal acts, it is impossible for crimes to enter a complete form, otherwise there will be no so-called justifiable defense without defenders, such as killing people.
Second, the constituent elements of the right of special defense
In a sense, the right of special defense is a special form of the right of legitimate defense, and there is an inclusive relationship between them. The analysis of the constitutive requirements of special defense right must be based on the constitutive requirements of justifiable defense. In addition to the basic characteristics of the right of legitimate defense, the right of special defense has its own unique characteristics: first, the object of protection is restrictive, and the object of protection of the right of special defense is limited to protecting the personal safety of citizens, excluding other non-personal safety rights such as national interests, public interests or property rights. The second is the specificity of the defense object. The defense object of the special defense right is limited to the ongoing violent crimes such as beating, killing, robbery, rape and kidnapping that seriously endanger personal safety. Third, the limits of defense are infinite. If the defender can cause casualties caused by unlawful infringement in defense, it is not necessary to require that the defensive behavior be adapted to the degree of unlawful infringement. Fourth, the legitimacy of the right to defense. The right of special defense is the right of private relief that citizens are given by law to protect their personal rights. Fifth, the impunity of defense consequences, defenders have the right not to bear criminal responsibility when defending against illegal infringers, no matter what consequences they have caused to illegal infringers.
There are many views on the constitutive requirements of special defense in the legal field, and there are three different views at present: the first view holds that the establishment conditions of special defense right should meet the following three aspects: (1) The scope of defense must be aimed at violent crimes such as beating, killing, robbery, rape and kidnapping that seriously endanger personal safety; (2) The time of defense must be an ongoing illegal and violent act. (3) The object of defense must be the wrongdoer himself [7].
The second point of view is that the establishment of special defense right should meet the following three conditions: (1) Defenders aim at crimes that seriously endanger personal safety, mainly violent crimes; (2) The subject of defense is any citizen; (3) A defender who kills or injures an unlawful infringer is still a defensive act to stop the unlawful infringement [8].
The third view holds that the conditions for the establishment of special defense should have the following four aspects: (1) premise-there must be certain violent crimes; (2) Timing-it must be when a specific violent crime is going on; (3) Target-the perpetrators of illegal violence must be targeted; (4) Subjective conditions-it must be intentional to defend legitimate rights and interests, that is, it must be to protect national interests, public interests, personal rights of oneself or others [9].
The author thinks that special defense is a kind of special justifiable defense, and its constituent elements should be similar to justifiable defense. The first view, although it embodies the legislative spirit of the third paragraph of Article 20 of the Criminal Law from three aspects: the time, the object and the scope of defense, only considers the objective elements of special defense and lacks the subjective elements of special defense. The composition of justifiable defense in China is the organic unity of subjective and objective conditions, and special defense is no exception. The second view recognizes the prerequisite for the establishment of special defense, and grasps the most important feature of special defense, that is, the violent crimes defended by defenders seriously endanger personal safety, but ignores that the subjective purpose of defense is to protect citizens' personal rights from infringement, and the defense object can only be against illegal violent criminals, and the defense opportunity is when violent crimes are being committed. The third view can fully reflect the similarities and differences between the constitutive elements of special defense and justifiable defense, but its subjective conditions are too broad to strictly express the difference intention between Article 20, paragraph 3, and Article 1 of the Criminal Law.
On the basis of the above analysis, the author analyzes the constituent elements of special defense according to the intention, scope, object and opportunity of defense:
First, in terms of defense intention, the defender must protect himself or others from specific violence, which is the subjective element of the establishment of special defense. The existence of defense intention determines the establishment of special defense. Defense intention has two contents, one is cognitive factor (defense understanding) and the other is will factor (defense purpose). The basic contents of defense understanding include: (1) understanding of the nature of violence; (2) A clear understanding of the reality of violence; (3) Who is the perpetrator of violence, that is, who is the object of defense; (4) Understanding of the danger of violence. The purpose of defense includes two levels: direct purpose and fundamental purpose. The direct purpose is to stop the ongoing violence, and the fundamental purpose is to protect personal safety.
Second, in terms of the scope of defense, the defender has explained what is a crime that seriously endangers personal safety and its specific scope (the explanation of special defense right).
Third, at the time of defense, violent crimes are going on. The so-called ongoing refers to the state of behavior in which violence has begun but not yet ended. If violence does not exist or has ended, special defense cannot be implemented. How to recognize that violence has begun? There are three viewpoints in criminal law circles: starting from the scene, entering the scene and compromise. Comparatively speaking, the compromise theory is more reasonable and more in line with the spirit of criminal legislation. At present, the eclectic theory has become a common theory in practice, and the author agrees with it.
So, how to determine the termination of behavior? At present, there are mainly views: first, the behavior is completed, second, the fact continues, fourth, the result is formed, and fifth, the danger is eliminated [10]. The above five viewpoints have their own merits. The author tends to exclude danger, but he is still biased. For example, a man and a woman in the same village in Lu Yu were lewd, and A forcibly raped B. Afterwards, A got up and left the scene, and B claimed to report A. A threatened with a knife: "I haven't hidden yet. If you want to sue me, there is no way. " In this case, if the theory that the behavior has been completed and the result has been formed is adopted, B can't defend A specially at this time, which is not conducive to protecting B's personal safety; If you continue to tell the truth, and A's rape has been completed, it is actually impossible to judge whether A continues to rape, which is not conducive to B's grasp of the defense opportunity; If you leave the scene, it may be self-defense afterwards; If we adopt the theory of excluding danger, we can implement special defense, but at this time, the identification of danger is only based on the subjective understanding of the defender, lacking the reality of defense, which is contrary to the principle of the unity of subjective and objective responsibility in our criminal law.
The author thinks that we should learn from the spirit of criminal legislation in Germany, France, Japan, Italy and other countries and adopt the theory of "real danger". For example, Article 52 of the Italian Criminal Law stipulates that "anyone who is forced to carry out an act in order to protect his or others' rights from the actual danger of illegal infringement shall not be punished as long as his defensive behavior is commensurate with the infringement. "[1 1] Article 52 of Japan's Criminal Code stipulates that" in the face of the real danger of illegal infringement, a person who is forced to carry out an act in order to protect his or others' rights from infringement shall not be punished under the condition of symmetrical defense and infringement. " [12] The so-called "danger" refers to the danger of violence to personal rights, which can be eliminated by causing certain personal injury to the perpetrator, rather than the danger that has occurred or cannot be eliminated through legal defense. "Reality" means that if it is not eliminated immediately, the danger will change from a possible state to an existing state. In the last case, judging from A's words and deeds, A may rape or even kill again. The danger faced by B is realistic, so B can exercise special defense right against A. ..
Fourth, on the defense object, special defense must be aimed at the perpetrator himself. The purpose of special defense is to eliminate and stop violence, because violence is carried out through the external movements of the actor's body, and stopping violence is the ability to stop violence against people. Therefore, the object of special defense can only be the perpetrator himself. There are two views in criminal law circles, positive and negative, on whether people (mental patients or minors) without criminal responsibility can implement special defense. Affirmative theory holds that illegality in illegal violence does not include the subjective aspect of the actor and the content of his responsibility ability. As long as the behavior of the actor has realistic harm to the rights and interests protected by law, it belongs to illegal infringement; There is no essential difference between illegal infringement on mental patients and minors and illegal infringement on responsible persons. Negative theory holds that the infringement on mental patients and minors is not illegal and generally cannot be defended.
The author thinks that both views are biased, so we can't treat such cases in a positive or negative way, and we should deal with them in combination with the subjective understanding of defenders. In principle, special defense can generally be implemented against those who are not responsible. If the defender knows that the infringer is irresponsible and has the conditions to escape and other ways to avoid or stop the infringement, he can't implement special defense. In other words, the rescue measures taken by the defender at this time are emergency hedging in criminal law; If the defender does not know that the infringer is an irresponsible person, special defense shall be allowed. Where there is society, there is conflict. It is impossible and unrealistic to solve conflicts only by countries. The state must give citizens the right to seek help in order to stabilize social stability. The establishment of special defense right is undoubtedly the progress of China's criminal legislation, but the abuse of special defense right may undermine the function of criminal law and be detrimental to the protection of human rights. The elaboration of this article is exactly the purpose of the author.
Precautions:
[1]. See Ding,,, ed., Law Press, 1998, Research on Key and Difficult Issues in Criminal Law Implementation.
[2]. See "Li is the justifiable defense of behavior-an empirical study of the crime of injury", Law Press, 200 1 Edition, Interpretation of Criminal Law, Volume 3.
[3]. See "On the Elements of Special Defense", China Procuratorate Press, May 5, 2006, 5438+0, edited by Ma and Shi Weizhong, "Research on Criminal Law Theory and Judicial Determination".
[4]. See Chen Xingliang's On the Defense of Nothing, the second series of Criminal Law Contention published by Founder Press in 2000.
[5]. See Wang, Ruan's Study on the Provisions of Special Defense Rights in the New Criminal Law, The Second Series of Criminal Law Contention by Founder Press, 2000.
[6]. See Qu's "Being Defended by Victims-A Typical Case Analysis", Law Press, 4th Edition, 2000, Interpretation of Criminal Law, Volume 2.
[7]. See Zhou Daoluan et al. The Revision and Application of Criminal Law, People's Court Press, 1997.
[8]. See Jiang's "Self-defense System Determined by the New Criminal Law" published in The Jurist 1997 No.3.
[9]. See Huang Mingru and Lu "On the Infinite Defense Right in China's New Criminal Law", The Second Series of Criminal Law Argument by Founder Press, 2000.
[10]. On Self-Defense by Chen Xingliang, Renmin University of China Press, 1987.
[1 1]. See the Italian Criminal Code translated by Huang Feng in China University of Political Science and Law Press 1998 10.
[12]. See Japanese Criminal Code of Zhang Mingkai, Law Press, September, 1998.
I didn't see the time. I'm sorry if I'm wrong.