In view of the fact that the provisions of the old criminal law regarding legitimate defense exceeding the necessary limit are too general and arbitrary in actual implementation, in order to better protect the interests of the victim and encourage courageous behavior (1), Article 20 of the 1997 Revised Criminal Law Paragraph 3 of the article stipulates that taking defensive actions against an ongoing violent crime such as murder, robbery, rape, kidnapping, etc. that seriously endangers personal safety, causing illegal injury or death to others, does not constitute excessive defense. Because the provisions of this provision are not logically rigorous, legal circles have different understandings of this provision. Some people believe that this provision is legitimate defense, a special defense within legitimate defense; many scholars also believe that this provision is not legitimate defense, but a new unlimited defense created by legislators. The author believes that it is rash and worthless to divide relevant commentators into two categories: one category believes that our country’s criminal law affirms unlimited defense, and the other category believes that our country’s criminal law does not affirm unlimited defense. The reason is that our country's legal circles do not have a unified understanding of the concept of unlimited defense. Dividing theorists into two factions according to different standards will undoubtedly lead to the extension and overlap of "the conflict of ideas of scholars of the same sect and the fusion of the theories of scholars of opposing factions." Even the same scholar's understanding of infinite defense is unstable. For example, on page 5 of "Legitimate Defense", Jiang Wei believes that Feuerbach's idea that "in order to protect all legitimate rights and interests, legitimate defense can be carried out" is an unlimited right of defense, which has actually evolved into today's legitimate defense system; in the same book On page 84, it cites a law passed by the Guatemalan Legislative Assembly, which states: Enclosure owners or their legal representatives catch criminals stealing livestock, fruits, forestry products and agricultural tools belonging to their properties... The owner of the manor and his legal representatives did not bear any criminal responsibility for actions taken by the offender - this provision was considered to be an unlimited right of defence. This provision is actually what we call today’s post-mortem defense, which is an intentional crime. On page 91, German criminal law scholar and criminologist Franz von List believes that, depending on the circumstances at the time, even insignificant legal property can be protected by killing the infringer, which is also an unlimited defense. right. He also believes that the right to unlimited defense is actually the right holder’s right to deal with wrongdoers at will[6]. From the above analysis, it can be seen that there is no unified concept of unlimited defense in my country’s legal circles. This is the main reason why scholars have fierce debates on the name and value of Article 20, paragraph 3, of my country’s Criminal Law.
From the beginning, some people have defined the unlimited right of defense as the unlimited right of defense. According to the third paragraph of Article 20 of my country's new criminal law, it refers to the situation where the defender protects national interests, public interests, personal rights of himself or others from ongoing assault, murder, robbery, rape, kidnapping, etc. that seriously endanger personal safety. The infringement of violent crimes and illegal violent acts committed against the perpetrators. Or without any basis, "analyze" the conditions of the unlimited right of defense from the perspective of Article 20, Paragraph 3 of the Criminal Law, and then "derive" the concept of unlimited defense, for example:
The unlimited right of defense It can only point to criminal acts, and it can only be violent crimes that seriously endanger personal safety... The scope of rights and interests protected by the unlimited right of defense can only be personal safety... The exercise of the unlimited right of defense cannot be exaggerated no matter how much. Pursuing criminal liability. The characteristic of the right of unlimited defense lies in the "unlimited nature" of defense means, which means that when citizens exercise the right to legitimate defense and resist illegal infringement, there is no limit to the intensity of the means adopted, that is, they can use any means to resist the illegal intruder, including any A means that can lead to the death of an illegal intruder without being held accountable for any criminal liability... Therefore, it can be considered that our country's criminal law has a positive attitude towards the unlimited right of defense... The unlimited right of defense can be defined as: when citizens face serious ongoing For violent crimes such as murder, robbery, rape, and kidnapping that endanger personal safety, any means, including lethal means, should be used to counter the illegal infringement of people's rights.
This kind of argument that relies on the relevant provisions of the criminal law to explain the concept or constitutive conditions of unlimited defense from the beginning, and then "infers" that our country's criminal law has a positive attitude towards unlimited defense has no logical basis and is an offense. The logical error of circular argument thus loses its value in the field of infinite defense research. However, when I try to define infinite defense, I find myself stuck in circular reasoning or a methodological paradox.
This is because - when defining the essence of a thing, we must examine all the extensions of the thing, and derive the qualitative definition that is different from other things from all the extensions of the thing. And when we are ready to separate the object of investigation from things that have nothing to do with it, we need a standard to distinguish it from other things, and this standard is the qualitative definition of things, that is, the essence of things. Specific to this article, in order to define the essence of unlimited defense, all legal systems and legal ideas of unlimited defense must be examined. When we know nothing about the nature of unlimited defense, how can we distinguish what embodies unlimited defense from the vast sea of ??legal systems and legal ideas?
Second, the basis of unlimited defense
The result of this speculation is contrary to the current papers affirming or denying unlimited defense - it is extremely difficult to examine the legal history of unlimited defense , even etymologically. The author's foreign language proficiency and academic vision undoubtedly limit this investigation. However, as the materials at the author's disposal indicate, there was a lack of self-identification of the legal system and legal thought of unlimited defense in history, but today there is no lack of self-identification of the legal system and legal thought of the past - there was no legislator or legal thought in the past. Thinkers believed that their regulations or ideas embodied unlimited defense, but many of the contents of these regulations and ideas are called unlimited defense by our criminal law scholars today. Lister's argument is undoubtedly typical of legal thought: depending on the circumstances of the case, even minimal legal interests can be protected by killing the attacker when the attack cannot be carried out in other ways. Many domestic scholars believe that List's statement reflects the idea of ??unlimited defense, and believe that unlimited defense has the following characteristics: First, there is a lack of balance of legal interests, that is, there is a large difference between the legal interests protected by the defenders and the rights and interests of the illegal infringers they harm. , are not roughly equal; second, there are no necessary restrictions. Since there is no reciprocal relationship between the protection of rights and interests and the damage to the rights and interests of the perpetrator, it will naturally lead to unnecessary restrictions on defensive behavior, that is, there are no restrictions on the means, intensity, and consequences of the defender. This article attempts to examine Lister's discussion from these two perspectives.
First, let’s talk about the “unnecessary limit requirements” of unlimited defense. Many scholars believe that List's argument is an unlimited defense, and believe that this kind of defense has no limit requirements. Ironically, just before and after this passage, Lister wrote: Defense should not exceed the necessary limit. The degree of "necessary" defense depends on the intensity of the attack. Once the limit of necessary defense is exceeded, further harm to the attacker is illegal.
Lister said that the degree of necessary defense depends on the intensity of the attack, which is far from the standard we use today to measure legitimate defense. Regarding how to understand the necessary limits of defense, Chinese academic circles have had the following different opinions:
First, the basic adaptation theory. This is to examine whether the legitimate defense exceeds the necessary limit and whether the intensity of the legitimate defense is basically consistent with the intensity of the illegal infringement. From the perspective of judicial practice, this standard is certain and has reference value, but it is still one-sided: when examining the necessary limits of legitimate defense, the intensity of illegal infringement is only one of the indicators. In addition, the priority and priority of illegal infringement should also be examined. The rights and interests protected by legitimate defense. Without these factors, it is inevitable to simply emphasize that the intensity of legitimate defense is consistent with the intensity of illegal infringement; secondly, the basic adaptation theory is difficult to explain some situations in judicial practice. For example, if a rapist is engaged in legitimate defense, it cannot be understood that the intensity of legitimate defense (murder) is basically consistent with the intensity of unlawful infringement (rape); moreover, the basic adaptation theory examines it from the perspective that the intensity of unlawful infringement limits the intensity of legitimate defense. necessary limits, which to a certain extent limits citizens’ initiative to defend themselves against ongoing illegal infringements.
Second, it needs to be said objectively. It is believed that legitimate defense is limited to the objective need to effectively prevent unlawful infringement. Lister's standard is such an objective need, but as someone commented, if one-sided emphasis on the necessary degree to stop illegal infringement is legitimate, it may give some people an excuse to prevent a small legitimate right, but it will give The other party has caused heavy damage, which can easily lead to the tendency of unlimited defense. This shows that List's standard of legitimate defense is the theory of objective needs. However, the objective needs theory serves as a standard for measuring legitimate defense and excessive defense, which shows that the defense expounded by List is still limited. If the defense intensity is greater than the invasion intensity, and there is no need to stop illegal infringement, it exceeds the necessary limit of legitimate defense.
Since List's formulation of justification is still limited, why do we think he articulates an infinite justification? One of the important reasons is that our standards for measuring self-defense today are very different from Lister's.
Third, the theory of equivalence of legal interests. This view is based on the value balance between the legal interests that are violated and the legal interests that are damaged by defensive actions. This idea of ??not ignoring the rights and interests of illegal infringers due to the illegality of infringement is a product of legal socialization thinking in the field of criminal law. This is reflected in the theory of legitimate defense, which means that the nature of legitimate defense has changed from explaining the nature of legitimate defense based on individual rights in the past to explaining the nature of legitimate defense based on social interests. Even if the offender is still a member of society, his legitimate rights and interests are still protected by the law, especially criminal law. The criminal law, which aims to punish crimes and protect the people, can be said to be the "Declaration of Human Rights of Criminals" in this regard.
Fourth, in summary, this view fully absorbs the rationality of the first three views and believes that in order to avoid illegal infringement of light strength, excessive strength is not allowed. If non-heavy strength is not enough to prevent illegal infringement, heavy defense strength can be used. If moderate defensive measures are sufficient to stop illegal infringement, drastic defensive measures are not allowed. If non-drastic measures are insufficient to stop the illegal infringement, it can take drastic measures. In order to protect the rights and interests of minors, defensive actions must not cause significant damage. Generally speaking, for minor unlawful infringements that do not directly endanger personal health, serious injury or even killing should not be used to defend.
It can be seen from the above analysis that Lister’s discussion is legitimate defense if it takes objective needs as the necessary limit of defense. If measured by utilitarian or comprehensive standards, it is obviously excessive defense. Therefore, there is an epistemological basis for thinking that Lister's discussion is an infinite defense. It shows that we have our own standards to judge whether something is legitimate defense. We always use our standards to measure the objective world. Moreover, this standard has become the form of thinking we impose on objective things. As the Italian Vico said, the world a person perceives is nothing but the form of thinking he imposes on the world. The reason why existence is meaningful is only because he finds his own position in that form. 10. Therefore, the understanding of unlimited defense we have gained is based on the defense limits of our legitimate defense and is a product of measuring past or other countries' legal provisions. It is a comparative criminal law view of two defense limits, which can be called over-limit defense. It shows that a defense system is excessive defense according to our standards, but it is legitimate defense according to the defense standards in this system (regardless of the history of previous legitimate defense). Infinite defense can only have its basis from an epistemological perspective. This is the essence of Infinite Defense.
3. How to understand the provisions of Article 20, Paragraph 3 of my country’s Criminal Law?
1. Legal analysis
Our country currently has four conditions for taking defensive actions against ongoing violent crimes such as assault, murder, robbery, rape, and kidnapping that seriously endanger personal safety. According to different views, there is no criminal responsibility for the casualties caused by unlawful infringement. The first view is that three conditions should be met: the defender is targeting crimes that seriously endanger personal safety, mainly violent crimes; the subject of defense is any citizen; the second view is that the following three requirements should be met: the scope of defense must be for serious crimes Violent crimes such as assault, murder, robbery, rape, and kidnapping that endanger personal safety; the time of prevention must be the ongoing illegal violence; the object of defense must be the criminal himself. [22] The third view is that this defense should have four elements: its premise must be the existence of a specific violent crime; its timing must be that a specific violent crime is ongoing; the object must be the perpetrator of illegal violence ; In addition, the defender must have the subjective intention to defend legitimate rights and interests. [23] The fourth view is that the subjective condition of this kind of defense means that the defender must have legitimate defense intentions when defending, that is, the defender must have the intention to protect legitimate rights and interests when defending his own defense behavior and the results of his behavior. Subjective psychological attitude; objective conditions refer to the behavior that a defender must perform when facing an unlawful intruder who is committing violent crimes such as murder, robbery, rape, and kidnapping that seriously endanger personal safety. [24] The author believes that this kind of defense should meet the following conditions: the object of defense must be an illegal offender who is committing a violent crime; the scope of defense is the ongoing violence such as beating, murder, robbery, rape, and kidnapping that seriously endangers personal safety. crime.
Once the illegal intruder stops the infringement or objectively cannot continue to commit violent crimes, the defender should stop defending. Otherwise, the serious damage caused will be deemed as excessive defense and he should bear criminal responsibility. Defenders must subjectively hold the right to stop ongoing violent crimes in order to safeguard the personal rights and interests protected by criminal law; even if our country's criminal law stipulates that those who excessively defend against violent crimes that seriously endanger personal safety and cause casualties to unlawful infringement will not bear criminal responsibility , but this does not mean that those who exercise excessive defense can arbitrarily deprive the rights and interests of the unlawful intruder. The purpose of defense is to stop illegal infringement, so it is decided that the defender must follow this principle regardless of the defense method or defense intensity. This also reflects that this kind of defense has limits.
2. It is incorrect to think that this provision is unlimited defense.
As this article points out, even if violent crimes that seriously endanger personal safety can be used as a defensive act to deprive people of unlawful infringement of human life, it does not mean that this kind of defense has no limits. For legitimate defense, depriving the person of unlawful infringement of life is the highest limit of defense, of which casualties are the limit, which corresponds to the casualties caused by unlawful infringement, so it is necessary. It cannot be considered that casualties are the highest limit but not the limit, nor can it be considered that there is no limit to the number of people who can cause casualties.
3. It is incorrect to think that this provision belongs to special defense.
Many scholars who deny the unlimited defense stipulated in Paragraph 3 of Article 20 of my country’s Criminal Law believe that it stipulates special defense, which is different from the general defense stipulated in Paragraph 1 of Article 20 of my country’s Criminal Law. As we all know, the word special is a concept with uncertain connotation. There are two different understandings of the relationship between special and general: the first refers to principles and exceptions, which is considered to be Paragraph 1 and Paragraph 1 of Article 20 of my country's Criminal Law. The second type refers to the relationship between special and general in a philosophical sense, but the author believes that Article 20, Paragraph 3 of the Criminal Law is a special defense based on this understanding, that is, defensive actions against illegal infringements other than violent crimes do not constitute special defense. . In fact, all defenses are special defenses, and legitimate defense cases are very different. Every kind of illegal infringement and the same kind of illegal infringement of different degrees or even the same degree have different forms depending on the time and place, and the objects of action have changed, and they will show their special defense needs and necessary limits. The necessary intensity to stop illegal infringement must be necessary under certain conditions, and "necessity" cannot be understood without the specific conditions of defense. [26]
4. It is incorrect to think that this provision is excessive defense.
As the author discussed, infinite defense is understood by us to have two meanings: first, it is the infinite defense that has been explained; second, it is over-limit defense. It is believed that Article 20, paragraph 3, is the premise of excessive defense, and it is necessary to recognize the imbalance between the legal interests infringed by violent crimes and the legal interests damaged by legitimate defense in order to prevent illegal infringement. However, an analysis of Article 20, paragraph 3, shows that the legal interests infringed by such violent crimes involve human life and health, sexual freedom, etc. These are the most important parts of personal rights. Judging from the most serious consequences that the defender may cause and the death of the unlawful intruder in this paragraph, the author believes that the legal interests protected by the defender are obviously equivalent to the rights and interests of the unlawful intruder that he damages, and there is no disparity between the two.
5. Paragraph 3 of Article 20 of my country’s Criminal Law is the specific provision of the legitimate defense system in the field of violent crimes that seriously endanger personal safety.
According to the principle of legitimate defense, the intensity, method and consequences of defensive behavior should be generally consistent with the intensity, method and consequences of the infringement. Because the series of violent crimes listed in Paragraph 3 of Article 20 of the Criminal Law constitute the most serious harm to people, it is determined that the most stringent defensive measures must be taken against these violent crimes. That is to stop the illegal infringement - to deprive the illegal intruder of his right to life. From this point of view, the provisions of Article 20, paragraph 3, of the Criminal Law are the embodiment of the principle of legitimate defense in the field of violent crimes that seriously endanger personal safety. [27] To this end, Chinese scholars commented that the new criminal law provides some legislative explanations on this issue to a certain extent. [2 8]
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