Article 20. In order to protect the state, public interests, personal, property and other rights of oneself or others from the ongoing unlawful infringement, it is justifiable defense to stop the unlawful infringement and cause damage to the unlawful infringer, and it is not criminally responsible.
If justifiable defense obviously exceeds the necessary limit and causes great damage, criminal responsibility shall be borne, but the punishment shall be mitigated or exempted.
Taking defensive actions against violent crimes such as assault, murder, robbery, rape, kidnapping, etc., which seriously endanger personal safety, and causing casualties to illegal infringers, is not excessive defense and does not bear criminal responsibility.
If others hit others first, they can take appropriate self-defense. Reasonable self-defense does not bear legal responsibility, but if self-defense exceeds the necessary limit and causes great damage, they should bear criminal responsibility.
Second, the conditions required for excessive defense
1. Objectively, it has the behavior of excessive defense.
Excessive defense meets the first four conditions of justifiable defense, but it does not meet the fifth condition. Excessive defense should meet the first four conditions of justifiable defense, namely, the most basic preconditions, time conditions, object conditions and subjective conditions of justifiable defense. Without any of these four conditions, it is impossible to establish excessive defense, but other illegal and criminal acts, such as provoking troubles, imaginary defense, improper defense, and defending a third party, cannot be established. These defenses have no subjective and objective basis for justifiable defense, and they are illegal acts in themselves, which constitute a crime and should be convicted and punished according to the crimes stipulated in the Criminal Law. )
2. It has caused great damage to the infringer.
I feel guilty subjectively about the excessive result.
Three, the criminal responsibility of excessive defense is mainly to solve the problem of conviction and sentencing of excessive defense:
(a) the conviction of excessive defense
Excessive defense only shows the nature of defensive behavior and has no decisive influence on what constitutes a crime. There is no special provision in the criminal law for the crime of excessive defense and the specific applicable statutory punishment. According to the subjective form of defender's crime and the specific harmful results caused objectively, the defendant should be convicted on the charges stipulated in several articles of the specific provisions of the criminal law. Excessive defense is only a consideration of the sentencing circumstances that people should be mitigated or exempted from punishment.
(2) Sentencing for excessive defense.
For the sentencing of excessive defense, the second paragraph of Article 20 of the Criminal Law stipulates that "the punishment shall be mitigated or exempted". As for the circumstances of mitigating punishment and exempting punishment, there is no explicit provision in the criminal law.
According to judicial practice, to reduce or exempt the punishment of excessive defense, the following circumstances should be comprehensively considered:
(1) Reasons for defensive behavior;
(2) the nature of the interests protected by the defense;
(3) the extent to which excessive defense obviously exceeds the limit and the severity of the harm caused;
(4) the form of the defender's subjective fault and the situation at that time;
(5) Reasons for excessive defense.
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