[Case] Defendant Zhang Jinlong, male, 29 years old, from Xinle County, Hebei Province, is an individual owner. At about 3 pm on a certain day in 2000, the defendant Zhang Jinlong was selling cloth in the market. The victim who had just drunk came over and pointed to a piece of cloth for Zhang to give him. Zhang asked about the situation and handed it to. Li took the cloth and looked at it briefly. It was too small, so he threw it in Zhang Jinlong's face. Zhang took the rag and slapped it. The two sides had an argument and were persuaded by others. Zhang Jinlong quickly packed some cloth and left the market, so as not to make things worse. At 5 o'clock in the afternoon, when Zhang Jinlong returned to the market to get the rest of the cloth, he was discovered by Li Zhiquan, who had been waiting for a long time. Chasing Zhang punched Zhang in the face again. Zhang's nearsighted glasses were smashed to the ground, and the fragments of glasses cut Zhang's eyelids, but Zhang didn't fight back. Then Li grabbed the neck with his right hand and continued to beat Zhang. Because Li is tall and strong, and Zhang is thin and thin, he can't get away from it. In order to escape the beating, he took out the fruit knife he carried with him and stabbed Li in the right arm, but Li still didn't stop beating Zhang. Zhang stabbed Li in the left abdomen again, and Li let go of Zhang, but Zhang didn't stab Li again. The forensic doctor identified Li Zhiquan's abdominal injury as serious.

[Question] During the trial of this case, there was no objection to the defensive nature of the defendant Zhang Jinlong's behavior, but there were two different opinions on whether his behavior exceeded the necessary limit and constituted excessive defense.

The first opinion is that Zhang Jinlong's behavior has exceeded the necessary limits, which is excessive defense and should bear criminal responsibility. The reason is that the victim Li Zhiquan only used boxing instead of weapons, but Zhang Jinlong stabbed Li Zhiquan with a fruit knife. According to the standard of defense means and intensity, Zhang Jinlong's defense behavior obviously exceeds the necessary limit. At the same time, Li Zhiquan's aggression has not reached the level of threatening Zhang Jinlong's life, but Zhang Jinlong used weapons to fight back, causing Li Zhi to be seriously injured. From this point of view, Zhang's defensive behavior also exceeded the necessary limit and should bear criminal responsibility.

The second opinion is that Zhang Jinlong's behavior belongs to self-defense and he does not bear criminal responsibility. The reason is: as long as defensive behavior is necessary to stop illegal infringement, it is necessary, and no matter what means are used, no matter whether the damage is light or heavy, defense is appropriate. One hand clamped the neck and the other hand slammed Zhang's head, making Zhang unable to resist and break free, and his body was seriously threatened. Li Zhuangzhuang's, Zhang is thin. In order to get rid of Li's illegal infringement, Zhang stabbed him with a fruit knife. Li's arm was scratched during the stabbing, but he didn't stop attacking until his abdomen was stabbed. As soon as he let go, Zhang immediately stopped fighting back. Visible, Zhang Jinlong's defensive behavior is necessary to stop illegal infringement, and did not exceed the necessary limit, causing undue damage. It belongs to self-defense and does not bear criminal responsibility.

[Comment] Modern criminal law theory holds that justifiable defense is to give citizens the legal right to stand up and defend themselves in an emergency that should be protected by law, which in itself means a supplement to the state penalty power. Self-defense is not criminally responsible, but it is conditional. China's criminal law theory has made necessary restrictions on the constitutive conditions of justifiable defense behavior, that is, it puts special emphasis on the subjective defense consciousness of the perpetrator of justifiable defense, distinguishes the constitutive elements of justifiable defense and imaginary defense through the cognitive errors of the "error theory" in criminal law, judges the legality of the behavior through its defense consciousness, and distinguishes the constitutive elements of "provoking troubles" and "justifiable defense"; In the objective aspect, it emphasizes the time and method of the actor's self-defense behavior, and the appropriateness and appropriateness of the degree of confrontation. Limit the opportunity of justifiable defense with "ongoing" (emergency) and distinguish the constitutive elements of "justifiable defense" and "improper defense" (before and after defense). Judging from the "roughly equivalent" method and degree, restricting its behavior belongs to "excessive defense".

The above-mentioned different opinions in this case are based on different understandings of the following issues. First, about the time conditions of self-defense. Second, about the scope of unlimited defense.

First, accurately understand the time conditions of self-defense, that is, the beginning time of "ongoing" illegal infringement. Seize the beginning of illegal infringement. Theoretically, there are two views.

The first is the single standard theory. For example, the theory of beginning (that is, the beginning of an illegal act is the "beginning" of an illegal act) and the theory of entering the scene (that is, as long as the infringer enters the scene of infringement, the danger of infringement already exists, which is the beginning of illegal infringement). What is widely accepted in practice is the priming theory.

The second is the theory of double standards. The theory of double standards adopts general standards and special standards to determine the starting time of illegal acts. The general standard is the beginning, that is, the beginning is when the illegal infringement begins to be implemented, and the special standard is the emergency standard, that is, for those violent acts that seriously endanger personal safety and public safety, although they have not yet started to be implemented, as long as they are nearby, they should be regarded as the beginning of the illegal infringement, because their legitimate rights and interests are in urgent danger of being illegally infringed. Such as murder, robbery, rape, injury and other serious violent acts that seriously endanger personal safety, although it has not reached the level of attempting to commit a crime. However, due to the imminent threat to citizens' personal rights, it should also be regarded as the beginning of illegal behavior and can be properly defended.