Keywords: justifiable defense, special defense
I the concept of self-defence
Self-defense is one of the legitimate acts, which refers to the act of stopping illegal infringement in order to protect the state, the public, oneself or others' personal, property and other rights from ongoing illegal infringement. If it causes damage to the illegal infringer, it belongs to legitimate defense and does not bear criminal responsibility. Self-defense is one of the reasons to prevent breaking the law in criminal law theory. (Chinese criminal law scholars call this kind of behavior that conforms to the constitutive requirements of crime in form and has no social harm or criminal illegality in essence "excluding harmful behavior", "excluding illegal behavior" or "excluding criminal behavior". However, the actor's self-defense behavior shall not obviously exceed the necessary limit.
Two. Conditions for the establishment of justifiable defense
In order to avoid justifiable defense being used as an excuse to exempt from criminal responsibility, the establishment of justifiable defense is strictly restricted. It includes cause conditions, time conditions, object conditions, subjective conditions and restrictive conditions. Only the time conditions and limit conditions of self-defense are analyzed here.
(1) time condition. Only legitimate defense can be carried out against ongoing illegal infringement. The so-called ongoing means that the illegal infringement is in an ongoing state that has begun but not yet ended.
(1) There is a great controversy about the beginning of illegal infringement in China's theoretical and practical circles, and there are mainly the following four viewpoints:
1. Enter the infringement site. According to this theory, when the infringer enters the infringement scene, the illegal infringement has already begun.
2. Start talking. According to this theory, the beginning of unlawful infringement is the "beginning" of unlawful behavior, and self-defense is carried out at the beginning of unlawful infringement.
3. Face the danger theory. According to this theory, the beginning of illegal infringement should mean that the legitimate rights and interests have directly faced the danger of illegal infringement. There are two specific situations: first, illegal infringement has been carried out, and legitimate rights and interests are being illegally infringed; Second, the implementation of illegal infringement is imminent, and legitimate rights and interests will suffer illegal infringement.
4. Summarize. According to this theory, illegal infringement should generally start as the beginning of illegal infringement, but when the real threat of illegal infringement is very obvious and the result of endangering society will happen immediately without proper defense, it should also be considered that illegal infringement has begun.
The above four viewpoints are the most comprehensive, closest to the legislative purpose of self-defense, and most conducive to protecting the legitimate rights and interests of the parties.
(2) The illegal infringement is not over yet, and it should be analyzed in practice. It can be that the illegal infringement is in progress, or that the behavior has ended and the dangerous state caused by it continues. However, in some cases, although the dangerous state caused by unlawful infringement is still going on, it should be regarded as the end of unlawful infringement if it cannot be ruled out by justifiable defense.
The end of justifiable defense can be that the illegal infringer automatically stops or cannot continue, or that the illegal infringement has been completed and the losses caused by the illegal infringement cannot be recovered in time. It is not appropriate to defend before or after the illegal infringement has begun.
(2) Limit conditions. It means that self-defense cannot obviously exceed the necessary limit, causing great damage to the illegal infringer. What is the necessary limit, there are three views:
1. Basic adaptation theory. It is believed that the necessary limit of so-called justifiable defense is the nature of defensive behavior and illegal infringement.
The means, intensity and consequences should be basically adapted.
2. it needs to be said. It is considered that the necessary limit of justifiable defense is necessary for defenders to stop illegal infringement.
As long as the damage is necessary to stop the illegal infringement, it is not enough to stop the illegal infringement. Even if the defense exceeds the possible damage caused by the other side in intensity and consequences, it cannot be considered as exceeding the necessary limit of legitimate defense.
3. Very good. It is believed that the necessary limit of justifiable defense should be based on the necessity of stopping illegal infringement in principle.
Accurate, at the same time, there is not much difference between defensive behavior and illegal infringement in means and intensity.
Among the above three viewpoints, the basic adaptation theory puts forward the characteristics of necessary limits, that is, it recognizes that adaptation is not equal to Jedi and can be surpassed, but at the same time it emphasizes that it cannot be surpassed obviously, and the gap is too large. This theory is conducive to ensuring the exercise of citizens' legitimate defense rights and preventing defenders from abusing their rights, so it is reasonable. However, only the objective characteristics such as the nature and intensity of defense and infringement are weighed, and the subjective purpose of the defender is not investigated. Therefore, the lack of investigation may lead to the situation that is basically compatible with illegal infringement but there is no need to stop illegal infringement as legitimate defense, thus inappropriately expanding the scope of legitimate defense. The theory of objective needs takes the need of defenders to stop illegal infringement as the standard of necessary limit, and emphasizes the legitimacy of defense purpose, thus grasping the key to understanding the necessary limit. However, this view overemphasizes objective needs, completely ignores the equivalence between defensive behavior and unlawful infringement, and does not set necessary constraints on defenders, which may lead defenders to abuse their right to defense, thus giving people unlawful infringement.
Cause unnecessary damage. In fact, the above-mentioned equivalence theory is an organic combination of the theory of objective needs and the theory of basic adaptation, which not only grasps the essence and key features of understanding the necessary limit, but also helps to encourage citizens to carry out legitimate defense, puts forward necessary constraints on defenders, and is conducive to ensuring the correct exercise of legitimate defense, thus drawing lessons from the rationality of the theory of basic adaptation and the theory of objective needs and avoiding their shortcomings, which can be described as a reasonable and desirable proposition. In view of this, the theory of equivalence has gradually become the general theory of China's criminal law and the leading theory guiding criminal judicial practice.
It should be noted that "obviously exceeding the necessary limit" and "causing great damage" are essentially the limits of self-defense.
Two sides of the degree condition. "Causing great damage" is a concrete manifestation of "obviously exceeding the necessary limit"; "Exceeding the necessary limit" is the standard of "causing great harm". In other words, "there is no situation that obviously exceeds the necessary limit without causing significant damage. In other words, there is a problem of obviously exceeding the necessary limit only when significant damage is caused; There is no' excessive means' and' insufficient results' or the opposite. " Whether restricting justifiable defense will make defenders consider whether their actions are excessive and affect their rights, the criminal law stipulates that they can exercise unlimited defense rights against some illegal violations.
Three. Special defense
According to the third paragraph of Article 20 of the revised new criminal law: "Taking defensive actions against ongoing violent crimes such as assault, murder, robbery, rape and kidnapping that seriously endanger personal safety, causing casualties of unlawful infringers, is not excessive defense and does not bear criminal responsibility." This initiated the criminal legislation of unlimited defense right in China. The legislative intention of this provision is mainly to correct the general tendency of lax handling of cases of excessive defense in judicial practice in the past, and to encourage citizens to make better use of their right to defense in order to protect their legitimate rights and interests and maintain social order. However, like general defense, special defense can be divided into two types according to whether defense has been illegally infringed: one is legitimate defense carried out by victims directly injured by violent crimes that seriously endanger personal safety; One is the defense by non-victims who are not directly affected by violent crimes that seriously endanger personal safety, that is, defending others. Because there is no distinction between victims and non-victims, the scope of application of special defense will be too broad, thus ignoring the protection of the legitimate rights and interests of illegal infringers.
The law should be rational and fair, and anyone's legitimate rights and interests should be protected by law. While strengthening the protection of the legitimate rights and interests of defenders, we must not ignore the legitimate rights and interests of illegal infringers. Otherwise, the law will lose its objectivity and impartiality, and it will lose its foundation of existence. What needs to be emphasized is that the victim's special right of defense is a derivative right given to citizens by the state and a relief measure under special conditions. Montesquieu said that self-defense between citizens does not need to be attacked. Only in an emergency, if they wait for the help of the law, they will inevitably lose their lives, and they can exercise this aggressive right of self-defense. Therefore, we should take objective and rational thinking, stand on a fair stand, classify "defending others" in the existing special defense regulations as general defense and follow the general defense regulations, and strictly limit special defense to "legitimate defense". This not only gives consideration to the social protection function and human rights protection function of criminal law, but also does not dampen citizens' sense of justice and enthusiasm for cracking down on illegal and criminal acts. Accordingly, the third paragraph of Article 20 of the Criminal Law can be expressed as follows: The justifiable defense of ongoing assault, murder, robbery, rape, kidnapping and other violent crimes that seriously endanger personal safety, resulting in illegal injury or death of others, does not belong to excessive defense and does not bear criminal responsibility.
Main documents:
Zhang Mingkai. Criminal law (1) [M]. Beijing: Law Press, 1997.232.
Han Yi. Subject review of special defense right. Research on Law and Business (Journal of Zhongnan University of Economics and Law): Law Edition 20020 1