Self-defense is to protect national interests, public interests, oneself or others' personal, property and other rights from the ongoing illegal infringement, and to take the method of causing damage to the illegal infringer to stop the illegal infringement. Self-defense is not criminally responsible. The essence of self-defense is to stop illegal infringement and protect legitimate rights and interests. We should grasp this core content when dealing with all issues related to self-defense. The objective feature of self-defense is that when the legitimate rights and interests are illegally infringed, the method of illegal infringement is adopted to stop the illegal infringement and protect the legitimate rights and interests. The subjective feature of justifiable defense is to protect legitimate rights and interests from unlawful infringement when it is realized that unlawful infringement is going on.
Second, the conditions for self-defense.
Self-defense is a right given to citizens by law. This is also the moral obligation of citizens. However, the exercise of rights must also meet certain conditions, otherwise it will cause new illegal infringement.
(a) there is a real illegal infringement. Self-defense is an act to stop illegal infringement and protect legitimate rights and interests, which is naturally based on the existence of illegal infringement in reality. Therefore, unlawful infringement in reality is the cause of self-defense. Illegal infringement is illegal infringement, including criminal acts and other illegal acts.
(2) Illegal infringement is in progress. Only when the illegal infringement is going on, the legitimate rights and interests may be infringed or threatened urgently, and defensive behavior becomes a necessary means to protect the legitimate rights and interests. The illegal infringement has begun, but it is not over yet. The legitimate rights and interests protected by law are being illegally violated. If the perpetrator uses tools to kill people, the robbery by means of violence and coercion has begun, but it is not over yet. The infringed person or others may exercise self-defense. No justifiable defense shall be conducted before the unlawful infringement begins or ends. If "defense" is carried out in this state, it is not justifiable defense, but improper defense. Unlawful infringement has not yet begun, that is, starting "defense" is to defend in advance.
(3) have a sense of defense. Self-defense is also a kind of behavior in which subject and object are integrated. Only the behavior fighting with anti-package consciousness can establish self-defense consciousness, including defense knowledge and defense will. Defense consciousness means that the defender realizes that illegal infringement is going on; Defensive will is to guide defenders to protect national and public interests, and to protect their own or others' personal and property rights from ongoing illegal infringement. The reason why justifiable defense is not harmful to society is that it is implemented to protect the legitimate rights and interests protected by law from unlawful infringement. This shows that the actor who carries out justifiable L defense has a clear defense intention. If the actor does not "defend" for legitimate rights and interests, but for illegal rights and interests, it does not constitute legitimate defense.
(4) It must be for the purpose of protecting national interests, public interests, and the person, property and other rights of oneself or others from ongoing illegal infringement. The legitimacy of defensive behavior is to protect the state, public interests, personal property and other rights of oneself or others from ongoing illegal infringement. Therefore, the implementation of justifiable defense must be based on the defense intention of protecting legitimate rights and interests from unlawful infringement. This is the subjective condition for the establishment of justifiable defense. The so-called defense intention refers to the psychological attitude that urges and dominates the defender to defend himself properly.
(5) Defending the infringer himself. When you have the preconditions and awareness of self-defense, you can only defend against illegal infringers. This is determined by the nature of self-defense. Self-defense is to stop the illegal infringer from directly implementing it. Defending the illegal infringer will stop the illegal infringement and protect the legitimate rights and interests.
Three, there is no significant damage beyond the necessary limit.
The defensive behavior shall not obviously exceed the necessary limit, causing great damage, otherwise it is excessive defense. The necessary limit should be based on the necessity of stopping illegal infringement and protecting legitimate rights and interests. Whether it is necessary or not depends on the comprehensive analysis of the case. On the one hand, it is necessary to analyze the means, strength, number and strength of personnel, as well as the objective environment and situation at the scene. The means of defense are usually determined by the objective environment of the scene. Defenders can only get the most convenient tools on the spot, and they can't be asked to choose milder tools on the spot. The problem is how to use the defensive tools, that is, the position and strength of the attack. In this regard, we should judge whether the defender can control the defense intensity under various objective conditions at that time. On the other hand, we should also weigh the nature of the legitimate rights and interests protected by defensive behavior and the defensive consequences, that is, the disparity between the legitimate rights and interests protected and the interests damaged should not be too great, and serious injuries or deaths should not be caused in order to protect tiny rights.
It should be noted that not exceeding the necessary limit is excessive defense, and only "obviously" exceeding the necessary limit causes great damage is excessive defense. First of all, slightly exceeding the necessary limit does not constitute excessive defense. Only when it can be clearly and easily identified as exceeding the necessary limit can it be defined as excessive defense. Secondly, it is not excessive defense that causes general harm, but excessive defense that causes great harm. Finally, the above-mentioned necessary limit conditions of justifiable defense do not apply to the defense of violent crimes that seriously endanger personal safety (excessive defense).
Four. Circumstances and conditions of excessive defense
In view of the serious social harm of violent crimes that seriously endanger personal safety, in order to better protect citizens' personal rights, the third paragraph of Article 20 of the Criminal Law stipulates excessive defense. In other words, taking defensive actions against ongoing violent crimes such as murder, robbery, rape and kidnapping that seriously endanger personal safety, resulting in unlawful infringement of human casualties, is not excessive defense and does not bear criminal responsibility. The condition of excessive defense requires not only that the illegal infringement is going on, but also that the defender has a sense of defense and defends the illegal infringer himself. The more important condition is to defend against ongoing violent crimes such as murder, homicide, robbery, rape and kidnapping that seriously endanger personal safety.
Excessive defense and its criminal responsibility
Paragraph 2 of Article 20 of the Criminal Law stipulates: "If justifiable defense obviously exceeds the necessary limit and causes great damage, criminal responsibility shall be borne, but punishment shall be mitigated or exempted." Because there is no specific provision about the crime of excessive defense and the specific applicable statutory punishment in the criminal law, the conviction of excessive defense cases has been inconsistent in judicial practice, so it is necessary to study and unify it.
Excessive defense is a form of crime in which justifiable defense obviously exceeds the necessary limit and causes great damage. It is not an independent crime, but a statutory circumstance that should be mitigated or exempted from punishment when sentencing. Therefore, when dealing with cases of excessive defense, we cannot define the crime of excessive defense, nor can we adopt the crime of excessive defense, the crime of negligent death, or add the crime of excessive defense after the above crimes. According to the behavior and consequences of excessive defense and the subjective psychological attitude of the defender, the crime should be determined according to the relevant provisions of the specific provisions of the criminal law, and what crime should be determined to meet the constitutive requirements.
There are four different opinions on the criminal form of defenders in the case of excessive defense: one is intentional theory. It is considered that excessive defense is a deliberate crime because the defender deliberately causes damage; The second is the theory of negligence. It is considered that excessive defense is a negligent crime, because the defender is motivated by legitimate defense and has no intention of endangering society; Third, intention and negligence coexist. It is believed that there are both intentional crimes and negligent crimes in excessive defense, depending on the specific differences of cases; Fourth, indirect intention and negligence coexist. It is considered that self-defense is generally a negligent crime, but there may be indirect intentional crime, but there may be no direct intentional crime. We believe that the behavior of defenders still belongs to the category of excessive defense. Subjectively, for the purpose of self-defense, we defend the ongoing illegal infringement, but the defensive behavior obviously exceeds the necessary limit, causing great damage. Therefore, although the defensive behavior is deliberately implemented, the defender has no criminal intention to endanger society. The great damage caused by the defender's excessive defense of himself is usually not intentional, but due to his negligence or misjudgment in the tense struggle with the illegal infringer. Therefore, generally speaking, it is appropriate to treat defending Angelica as a negligent crime. However, it cannot be ruled out that in a few cases, the defender knows that his defense behavior may obviously exceed the necessary limit, causing great damage, but he has an attitude of letting this result happen in defense. If such damage really happens, it should be dealt with as indirect intentional crime. However, because direct intentional crime has a criminal purpose, and the defensive nature of excessive defense determines that defenders can only have defensive purposes, so excessive defense cannot constitute direct intentional crime.
Excessive defense is a crime that should bear criminal responsibility. However, this kind of crime is obviously different from ordinary criminal crimes, which is understandable because the defender is a crime that causes unnecessary great damage to the illegal infringer under the special circumstances of justifiable defense. At the same time, in the case of excessive defense, it does not mean that the defender should not cause damage to the illegal infringement, so he cannot bear the responsibility for all the damage caused, and can only be investigated for criminal responsibility for causing unnecessary major damage by obviously exceeding the necessary limit. Therefore, when sentencing a criminal who is over-defensive, we should fully consider the nature of the legitimate rights and interests protected by defensive behavior, the degree of over-defense, the nature and degree of great damage caused to the illegal infringer, the subjective and objective reasons of over-defense, etc. According to the facts and circumstances of the case, and we should reduce or exempt the punishment according to law.
In particular, the third paragraph of Article 20 of the current Criminal Law stipulates that taking defensive actions against ongoing violent crimes such as assault, murder, robbery, rape and kidnapping that seriously endanger personal safety, resulting in casualties of people who have violated the law, is not excessive defense and does not bear criminal responsibility. This provision expands the content of the necessary limit of self-defense, and makes it clear that defending the above-mentioned violent crimes is not criminally responsible, which will certainly play a positive role in protecting legitimate rights and interests from unlawful infringement, encouraging and supporting citizens to fight against illegal crimes, and maintaining social order. When citizens encounter violent crimes, they can make full use of the provisions of the criminal law and bravely and actively implement self-defense. The judicial organs shall apply the legislative provisions of the criminal law to give legal protection to citizens who struggle against violence and defend themselves.