(A) the concept of justifiable defense

According to Article 20 of China's Criminal Law, justifiable defense refers to the act of stopping unlawful infringement in order to protect the state, public interests, personal, property and other rights of oneself or others from ongoing unlawful infringement, and without causing obvious damage to the unlawful infringer beyond the necessary limit.

(2) Conditions for the establishment of justifiable defense

Self-defense must meet the following conditions:

1. Causality condition. The reasons and conditions of justifiable defense refer to the existence of illegal infringement with social harm and urgency. (1) There must be illegal infringement. (2) Unlawful infringement is not limited to criminal acts. The scope of unlawful infringement. It should include illegal acts and criminal acts. (3) Illegal infringement must exist in reality. As for the degree of unlawful infringement, it is usually limited to violent, destructive and urgent unlawful infringement. (4) Unlawful infringement should usually be committed by people.

In fact, there is no illegal infringement, and the actor mistakenly believes that there is illegal infringement, and defending for imaginary infringement belongs to imaginary defense. Imaginary defense should be treated differently according to whether the behavior is subjectively negligent or not.

2. Time conditions. The time condition of self-defense means that self-defense can only be carried out when the illegal infringement is going on, and it is impossible to carry out pre-defense and post-defense

3. Object conditions. The objective condition of self-defense means that self-defense can only be carried out on the illegal infringer himself, but not on the third person. Whether the wrongdoer has reached the legal age of criminal responsibility and has the ability of criminal responsibility does not affect the establishment of justifiable defense. As long as it is an emergency in which minors and mental patients commit unlawful infringement, they can defend themselves regardless of whether they know in advance that they are under the legal age of criminal responsibility or have no criminal responsibility ability. However, there should be some restraint in the means of defense.

4. Subjective conditions. The subjective condition of self-defense means that the defender must carry out subjective defense for the purpose of self-defense, that is, to protect the national interests, public interests and the personal, property and other rights of himself or others from unlawful infringement. If it is not for the above purposes, self-defense cannot be established. Therefore, the following three acts are not justifiable defense; (1) Defensive provocation. It refers to the behavior that the actor intentionally provokes the other party to commit illegal infringement by means of provocation and inducement for the purpose of infringement, and then harms the other party under the pretext of defense. (2) mutual violation of laws and regulations. Refers to the mutual infringement between the two parties in order to infringe the illegal intention of the other party. (3) the defense of protecting illegal interests.

5. Restrictions. The limit condition of justifiable defense means that justifiable defense cannot obviously exceed the necessary limit and cause great damage. Whether it obviously exceeds the necessary limit and causes great damage is a sign to distinguish between legal and illegal, legitimate and excessive defense.

On the degree of justifiable defense

The so-called justifiable defense refers to the act of stopping illegal infringement in order to protect the state, the public, the person, property and other rights of oneself or others from the ongoing illegal infringement, causing damage to the illegal infringer. It belongs to self-defense and does not bear criminal responsibility. It can be seen that justifiable defense is an important right and means given by law to citizens to fight against illegal and criminal acts, and its purpose is to protect public interests and citizens' legitimate rights and interests from continuous illegal infringement. However, this right and means given to citizens by law must also be exercised correctly in order to achieve the purpose of self-defense. If it is not properly exercised, it will endanger society and turn into a crime. Therefore, how to define justifiable defense, the author talks about some of his own views here for reference.

First, defense must be aimed at unlawful infringement. The so-called illegal infringement refers to the infringement of the legitimate rights and interests of public and private protected by law. The nature of unlawful infringement includes criminal infringement and general unlawful infringement, and the victim has the right to defend the infringer. However, whether all illegal acts should be self-defense. The author believes that unlawful infringement in self-defense mainly refers to those serious, intense, dangerous and aggressive behaviors. From the point of view of criminal infringement, the illegal infringement of excessive defense usually refers to those crimes that are urgent, violent and destructive and can cause serious damage to the object. For general, harmless and minor unlawful infringement, self-defense is generally not used to solve it, but mediation or other means are used to solve it, so as to achieve the purpose of resolving contradictions. In a word, illegal infringement must be defended.

Second, we must defend against the actual and ongoing illegal infringement. This content contains two meanings: first, illegal and infringing acts must actually exist, not by subjective imagination or speculation. If the illegal infringement that does not actually exist is mistaken for the existence of illegal infringement through imagination and speculation, and the so-called legitimate defense is wrongly implemented, causing damage to innocent people, this kind of defense is called imaginary defense in criminal law theory. The liability for damages caused by hypothetical defense should be handled according to the principle that the actor has a wrong understanding of the facts. That is, if the perpetrator could have foreseen it subjectively at that time, but failed to foresee it due to negligence, it shall be punished as a negligent crime; If it is unforeseeable by the actor at that time, it should be treated as an accident and should not be investigated for criminal responsibility. Second, the illegal infringement must be ongoing and has not yet started or ended. Self-defense must be carried out at an appropriate time, that is, before the illegal infringement has begun and has not yet ended. The so-called self-defense cannot be carried out before or after the illegal infringement. If the so-called defense is carried out under the above circumstances, it is called excessive defense in criminal law theory. Excessive defense, which constitutes a crime, shall bear criminal responsibility according to law.

Third, defense must be to protect legitimate rights and interests from unlawful infringement. From the perspective of defense purpose, the defense purpose of a defender must be to protect the country, public interests, the person, property and other rights of himself or others from ongoing illegal infringement, which is subjectively justified, which is the primary condition for the establishment of justifiable defense and an important basis for the criminal law to stipulate that justifiable defense is not criminally responsible. If the purpose of defense is to infringe on others' improper purposes, or to protect their own illegal interests, or to punish crimes, then its subjective purpose is contrary to the purpose of justifiable defense, regardless of the definition of justifiable defense.

It is just, so this kind of defense does not belong to justifiable defense. In judicial practice, the following situations are not justifiable defense: 1, and provocation in defense cannot be regarded as justifiable defense. The so-called defensive provocation refers to the act of deliberately provoking others by means of provocation, provocation and other improper means, causing others to attack themselves, and then deliberately hurting others under the pretext of defense. Defensive provocation should be punished as premeditated intentional crime. 2. Fighting, affray and other acts cannot be regarded as justifiable defense. Because the subjective purpose of fighting and gathering people to fight is to infringe on each other, not to protect the legitimate rights and interests of public and private property and personal safety, neither side has proper defense. However, for the party who voluntarily gives in and gives up fighting, the party who voluntarily gives in can defend itself while the other party continues to beat. Infringement in order to protect illegal interests cannot be regarded as justifiable defense. The subjective purpose of self-defense is to protect public and private property from ongoing illegal infringement, and its subjective purpose has distinct justice. In order to protect the infringement of illegal interests, its subjective purpose runs counter to the purpose of legitimate defense, not legitimate defense. Therefore, judging whether it belongs to self-defense, from its subjective purpose, must be confirmed by whether it has justice.

Four, the defense must be carried out against the infringer himself, not against others who have nothing to do with the infringement. The purpose of self-defense is to eliminate and stop illegal infringement and protect legitimate rights and interests. Illegal infringement can only come from the infringer. Therefore, only the wrongdoer himself can be defended (except for the same crime) to eliminate and stop the wrongdoer. If damage is caused to a third party in the process of defense, but the emergency avoidance conditions are not met in the process of implementing the act, whether criminal responsibility should be investigated should be determined according to whether there is fault or negligence. Whoever knowingly commits an act against a third person and constitutes a crime shall be punished as an intentional crime. If it is because the defender is highly nervous, he mistakenly regards the third person as an aggressor and carries out so-called defense, which belongs to imaginary defense. For imaginary defense, we should deal with it according to the principle of imaginary defense.

Five, the defensive behavior can not significantly exceed the necessary limit of causing significant damage. The purpose of defensive behavior is to eliminate and stop illegal infringement. Therefore, the means and intensity used in the defense process should not obviously exceed the necessary limit, causing great damage. If the defense obviously exceeds the necessary limit and causes great damage, it shall bear criminal responsibility. Whether defense obviously exceeds the necessary limit and causes great damage is the dividing line between legitimate defense and excessive defense. There is no specific standard in law on how to judge whether the defensive behavior obviously exceeds the necessary limit and causes great damage, but there are two main views in the legal field and judicial practice: one is the basic adaptation theory. The so-called basic adaptation means that defensive behavior and offensive behavior should be basically adapted. If the defensive behavior is basically incompatible with the infringing behavior, but obviously exceeds the infringing behavior and causes great damage, it is excessive defense. It is necessary to say the rest. The so-called necessity theory means that defense must have the necessary means and intensity to effectively stop illegal infringement, and this necessary means and intensity is the necessary limit. The author believes that the purpose of defense is to stop illegal infringement and protect legitimate rights and interests. Therefore, whether defensive behavior is excessive and how to limit it cannot be based on the subjective understanding of the defender, but only on objective reality. Generally speaking, the limit of self-defense should include the following four aspects: 1. When the illegal infringement can be stopped by gentle means, it is not allowed to defend by intense and ultra-intense means. 2. In order to avoid minor unlawful infringement, serious damage is not allowed. 3. For illegal acts that do not immediately and obviously endanger personal safety or major property safety, violent means of serious injury or killing shall not be used for defense. 4. After taking measures to stop the illegal infringement, it shall not continue to harm the illegal infringer.

In a word, the purpose of justifiable defense is to eliminate and stop illegal infringement and protect public property and citizens' personal and property safety. The definition of justifiable defense is of great significance for encouraging the broad masses of the people to fight against illegal infringement, eliminating and stopping illegal infringement in time and effectively punishing crimes. Thanks for adoption