1, there is actual illegal infringement, which is the premise of self-defense. Illegal infringement refers to acts that violate the law and are harmful to society, including both serious illegal acts that constitute a crime and illegal acts that violate the regulations on administrative penalties for public security that have not yet constituted a crime, and this illegal infringement is objective and realistic. If there is no unlawful infringement in fact, but the actor thinks there is unlawful infringement and carries out defensive behavior, it is not justifiable defense, but hypothetical defense.
2. The unlawful infringement must be continuous. It means that the infringer has started to commit the infringement, but the infringement is not over yet. The time when the unlawful infringement begins and lasts is the time when the actor performs self-defense.
3. The purpose is to protect the state, public interests, individuals, property and other rights of oneself or others from illegal infringement. Acts that seem to be self-defense are actually carried out without defending legitimate rights and interests, such as deliberately teasing and inducing the other party to commit illegal infringement, and then hurting the other party under the pretext of self-defense. This is not self-defense, but a criminal act.
4. The defensive behavior must be carried out against the unlawful infringer, which is the objective condition of justifiable defense, and justifiable defense must be aimed at the target and the unlawful infringer himself.
5. The defensive behavior does not obviously exceed the necessary limit, causing great damage, which is the constituent element of the behavior and result limit of self-defense. The so-called necessary limit refers to the necessary defense force to effectively stop illegal infringement.
If the defense obviously exceeds the necessary limit and causes great damage, it belongs to excessive defense. Significantly exceeding the necessary limit means that ordinary people can realize that their defense strength exceeds the necessary strength of legitimate defense. Significant damage means that the defender's defensive behavior obviously exceeds the necessary limit, causing unlawful infringement or personal injury to others, or causing other avoidable serious damage. Excessive defense should bear criminal responsibility.
There is no independent crime of excessive defense, and there is no independent statutory punishment. According to the law, criminal responsibility should be determined according to the relevant provisions and the crimes committed by the perpetrator, but the punishment should be mitigated or exempted.
Unlimited defense right: In order to encourage citizens to actively fight crimes, effectively stop serious violent crimes, and safeguard legitimate rights and interests, the third paragraph of Article 20 of China's Criminal Law stipulates that taking defensive actions against ongoing violent crimes such as beating, killing, robbery, rape, kidnapping, etc., which seriously endanger personal safety, and causing casualties of illegal personnel, is not excessive defense and does not bear criminal responsibility.
The illegal act of infringing on the person with no responsibility, although objectively causing damage, is not illegal and should be avoided as much as possible. Only when we have to, can we carry out certain damage to stop illegal infringement, but its nature is not self-defense, but should belong to emergency avoidance.
The harm to animals is ownerless, and its harm does not belong to illegal infringement or justifiable defense; Animals are precious animals owned or protected by the state, and their harmful behaviors can be "urgently avoided"; If the animal's injury is deliberately used by the owner or others, it should belong to self-defense.
Generally speaking, there is no justifiable defense in the case of fighting, and both sides have the intention to hurt. There are two possible situations of justifiable defense: (1) one party gives up fighting and escapes, while the other party refuses to give up, and the fleeing party has the right of justifiable defense; (2) In the process of fighting, one party's behavior has changed greatly, and the other party has the right of legitimate defense. If it is hands-on, the other party suddenly pulls out a gun.
Three, the necessary defense limit (1) there are two views:
(1) The intensity of defensive behavior and offensive behavior is roughly adapted; (adaptation theory)
(2) As long as it is necessary to take actions to protect legitimate interests, it is within the limits; (Must be said)
The adaptation theory is too strict with defenders, and it has to be said that it embodies the purpose of defense, but it is often too broad to protect infringers.
Defensive setting refers to taking some defensive measures in advance to prevent possible illegal infringement, which can play a defensive role when illegal infringement comes.
There is no legal prohibition, but the following conditions must be met:
1, the purpose is to prevent illegal infringement, not to retaliate against others;
2. Can't endanger public safety;
3. The damage caused by the defense device to the illegal infringer cannot exceed the necessary limit.
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's 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 from 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 legitimate defense with "ongoing" (that is, emergency) and distinguish the constitutive elements of "legitimate defense" and "improper defense" (before and after defense). By judging that its method and degree are "roughly equivalent", its behavior is limited 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.
The beginning of the ongoing illegal infringement should mean that the illegal infringement has been implemented and the object of its infringement is directly threatened. If it does not take defensive action, it will be violated. Therefore, it is characterized in that,
First, the objective aspect of illegal infringement has certain positive behavior and has already started, so it is different from attempted crime.
Secondly, from the point of view of the degree of infringement, the object of infringement has been directly threatened by reality, reaching the point where the personal and property rights of the victim will be damaged if there are no defensive measures. This standard can be called the theory of danger urgency. In this case, Zhang's glasses were broken, and the debris cut Zhang's eyelids. Li strangled Zhang with his right arm and continued to beat Zhang. When Zhang was not free, that is, the victim had been directly threatened by reality, Zhang took out a fruit knife and stabbed Li, that is, if there were no defensive measures, the victim's personal rights would be damaged. Therefore, the defendant's defensive behavior in this case meets the time requirement of justifiable defense, that is, the infringement has begun and the personal danger is approaching directly.