The right of special defense refers to the defense behavior that citizens can carry out under certain conditions and given special provisions by law. Because there is no intensity limit on this kind of defensive behavior, some scholars call it infinite defense, excessive defense and so on. Special defense is no longer a legitimate defense in the strict sense, but its particularity lies in the encouragement of the law to the defense behavior that lacks appropriateness. For the lack of appropriateness, it should be understood that the law only emphasizes justice in the defense of violent acts that seriously endanger personal safety, but does not sum up the appropriateness that general defense acts must have, excludes appropriateness from the factors that defenders need to consider, and does not evaluate whether there is negligence in the serious consequences caused by defenders, but only adopts an attitude that seems not to prohibit actually encouraging and allowing to imply the rationality of special defense.
Special defense should pay attention to the following points:
1, for non-violent crimes and violent acts as general violations, special defense clauses are not applicable;
2. For minor violent crimes or general violent crimes, special defense clauses are not applicable. Only by properly defending violent crimes that seriously endanger personal safety can there be no problem of excessive defense, in which "injury crime" generally refers to violent crimes with unclear boundaries between murder and serious injury;
Not all violent crimes such as assault, murder, robbery, rape and kidnapping are protected by special defense regulations. Only when violent crimes seriously endanger personal safety can the above provisions be applied. For example, the special defense clause cannot be applied to the defense against the unlawful infringement of robbery by anesthetic methods that will not cause casualties to others.
4. Violent crimes that seriously endanger personal safety are not limited to the above crimes listed in the Criminal Law, but also include other violent crimes that seriously endanger personal safety, such as robbing guns and ammunition and hijacking aircraft.
5. After the violent crime that seriously endangers personal safety has ended, if the perpetrator kills or injures the unlawful infringer, the special defense provisions shall not apply. For example, A used serious violence to rob B's property, and B's defense has stopped A's robbery. In this case, Party B shall not continue to "defend" and cause casualties to Party A, otherwise it will be a defense afterwards.
To sum up, the right of special defense can only be applied to violent crimes that seriously endanger personal safety. Even crimes such as beating, murder, robbery, rape and kidnapping that are clearly pointed out must reach the level of serious harm to personal safety, otherwise it will be difficult to become the object of application of special defense rights.
Legal basis:
Article 20 of the Criminal Law of People's Republic of China (PRC)
Self-defense in order to protect national interests, public interests, personal, property and other rights of oneself or others from ongoing illegal infringement, and stop illegal infringement, thus causing damage to the illegal infringer, it belongs to self-defense and does not bear criminal responsibility.
If excessive and justifiable defense obviously exceeds the necessary limit, causing great damage, criminal responsibility shall be borne, but the punishment shall be mitigated or exempted.
Special defense If defensive actions are taken against ongoing violent crimes such as assault, homicide, robbery, rape and kidnapping that seriously endanger personal safety, resulting in unlawful infringement of personal injury or death, it is not excessive defense and does not bear criminal responsibility.