The so-called emergency defense, in legal terms, means "illegal infringement is going on", and in theory, it is called "defense is just the right time" because defensive measures need to be implemented at this time. If the so-called defense is carried out before the illegal infringement has started or ended, "pre-defense" and "post-defense" are established, which are "improper defense" and have no legitimacy.
In this case, because the court found that Yu Huan was illegally restricted from personal freedom, it was an illegal and criminal act of "illegal detention" and a typical serial offender. From the beginning of restricting others' personal freedom to lifting this restriction, the whole period belongs to "illegal infringement is going on"
Can't we take defensive measures against this persistent illegal crime, but we can only take it easy? The argument that only when the right to life and health is threatened urgently can we defend ourselves properly confuses the concepts of general self-defense and special self-defense and inappropriately narrows the scope of general self-defense.
Special defense refers to the third paragraph of Article 20 of the Criminal Law, that is, "taking defensive actions against ongoing violent crimes such as assault, murder, robbery, rape and kidnapping that seriously endanger personal safety, resulting in casualties of illegal infringers, is not excessive defense and does not bear criminal responsibility".
This provision is also called excessive defense in theory, which means that no matter how heavy the defense measures are, it is not too much to cause the death of the defense object. In this case, the defendant Yu Huan did not face "violent crimes that seriously endangered personal safety" at that time, so he could not take "excessive defense" measures, otherwise he would bear the responsibility of excessive defense. Therefore, Yu Huan's defense lawyer believes that Yu Huan's behavior belongs to excessive defense and the reason is established; The reason why the court does not support it is hard to convince people. Whether the infringer uses tools to infringe, the law is not a condition for restricting defense.
In particular, the victim in this case also took extreme measures to seriously insult the defendant's mother and arbitrarily provoke the defendant's psychological endurance limit. The police's public relief failed to protect themselves and their mothers from restrictions and insults, and the legitimacy of defense was even more problematic (only causing serious injuries and deaths).
It is expected that the second instance of Shandong Higher People's Court will make a better judgment, which is more in line with the national conditions and reality.