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 it obviously exceeds the infringing behavior and causes great damage, it belongs to 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.
Finally, I will provide you with a typical case of self-defense:
In the early morning, the girl stabbed the intruder with a knife. Self-defense? Intentional injury?
Three murderers broke in in the early hours of the morning.
At 23: 30 on September 9, 2003, Wu, who works in Yangtai Mountain Hotel, Bei 'anhe, Haidian District, returned to the dormitory to rest with two other girls after a busy day. At 3 o'clock the next morning, three men suddenly broke in. The three girls who woke up from their sleep found that the people who came in were Sun, Li and Zhang who had worked in this restaurant. It turned out that three people, including Wu, suspected that the girl who lived in the same room complained to the manager. I wanted to make friends with a girl named Yin, but was rejected, so he wanted to take her out for a "lesson" that night. When the three of them knocked on the door and asked Silver to come out and was rejected, they broke into the house.
As soon as he entered the door, Sun punched it out. Wu, who was in the opposite bed, got up from the bed to dissuade her. Unexpectedly, Sun turned and started hitting her again. Wu said to him, "My pajamas are torn, too. In order to protect myself, I picked up the fruit knife on the bedside table. I just wanted to scare him, but he rushed over and scratched his left arm. At this time, Li Huang waved the iron lock and let out a cry. As soon as I raised my hand, he hit the fruit knife himself. " Watching the knife go straight into people's bodies, I was scared silly by Wu. "My mind was blank at the time, and the knife in my hand could not be loosened." Wu realized that she had killed someone. Wu later called the manager and reported to "1 10". At 4: 30 in the morning, Wu was taken away by the police.
On June 5438+1October 65438+May 2003, Wu was arrested on suspicion of intentional injury. The procuratorate believes that her behavior constitutes a crime of intentional injury and brings a lawsuit to the court. The family of the deceased also proposed criminal incidental civil compensation of 6.5438+0.8 million yuan.
On July 29, 2004, the Haidian District Court found that Wu's behavior belonged to self-defense, acquitted her, and released her on the spot without civil compensation. After the judgment of the first instance, the procuratorate protested and the family of the deceased also appealed.
There are great differences on whether self-defense is justified.
Whether Wu committed a crime depends on whether her behavior that night belongs to "justifiable defense". At the first trial, the procuratorate believed that the deceased Li beat Wu with an iron lock to stop the fight between Sun and Wu, and Sun's behavior did not reach the level that seriously endangered the personal safety of Wu and others. Wu also had many ways to ask for help at that time, so it should not be self-defense.
Yang Fenglan, a lawyer who pleaded not guilty, said that Wu's behavior belonged to the legitimate defense of unlimited defense right, which did not exceed the necessary limit and did not constitute a crime. Wu also pointed out that when Sun was beaten, she thought Sun was going to rape. When Sun beat her, insulted her, and tore her coat to expose her upper body, she thought Sun was going to rape herself. Finally, when Li tried to hit her with a big lock, she stabbed Li.
In the judgment, Haidian District Court analyzed whether Wu constituted self-defense. The court held that the three men entered the room at night and beat others, which seriously violated the personal rights of three weak women. When Li smashed a lock with a length of 1 1 cm, a width of 6.5 cm and a weight of 1 kg at Wu, the violence intensified and even endangered Wu's life. It was 3 o'clock in the morning when the incident happened, and the night was still. The crime scene is far from other people's homes. Wu and others are trapped in a small dormitory, and they are actually in a state of isolation. Therefore, Wu's behavior was completely self-defense and did not exceed the necessary limit, so Wu was acquitted.