Keywords: Excessive defense: Deng Yujiao’s case of excessive defense and the form of crime
Text On the evening of May 10, 2009, Deng Guida, Huang Dezhi and others were drunk Later, we went to the Dream Entertainment City of Xiongfeng Hotel, Yesanguan Town, Yesanguan Town, this county. Huang Dezhi forced the hotel attendant Deng Yujiao to take a bath with him, but he refused. Deng Guida and Huang Dezhi were extremely dissatisfied. They pestered and verbally abused Deng Yujiao. Under the persuasion of the waiter Luo and others, Deng Yujiao tried to leave the room twice, but was stopped by Deng Guida and was "pushed to sit" behind the single sofa. When Deng Guida approached Deng Yujiao again, Deng Yujiao, who was pushed on the single sofa, took out a fruit knife from her carry-on bag and stabbed Deng Guida on her left neck, left forearm, right chest, His right shoulder was injured; Huang Dezhi stepped forward to block Deng Yujiao and was stabbed on the inside of his right elbow joint. Deng Guida was seriously injured and died after rescue efforts failed; Huang Dezhi's injuries were identified as minor injuries, which is the basic fact of this case.
"Law is the art of benevolence and righteousness". As a criminal law that punishes crimes and protects people, criminal law should demonstrate its stability and clarity so that it can be recognized and abided by people, and only then can the concept of the rule of law in criminal justice be demonstrated. As Italian jurist Beccaria said: "Every citizen should have the right to do everything that does not violate the law without having to worry about trouble other than the consequences of the act itself." However, in criminal judicial practice, although the criminal law clearly stipulates both legitimate defense and excessive defensive behavior, due to differences in understanding among judicial personnel, the identification of legitimate defense and excessive defensive behavior in judicial practice is inconsistent. As a result, they misinterpreted the original intention of legislation, trampled on the law, desecrated fairness and justice, and damaged the prestige of the judicial organs. There are still controversies in theoretical and practical circles surrounding the determination of the scope and limits of defense rights, especially defense in the form of legitimate defense crimes. Many of them are aimed at current legislation, and more are aimed at judicial handling of cases. Therefore, in judicial practice, the court's judgments often produce completely different opinions on the determination of the form of the crime of self-defense in similar cases. In some injury cases, some were convicted of intentional injury, and some were convicted of negligence causing death. In terms of the determination of excessive defense, some were determined to be indirect intentional, and some were determined to be negligent negligence. Similar cases are very different in the determination of subjective guilt forms, which ultimately leads to different sentencing severity, which can’t help but cause people to be confused about the identification and identification standards of subjective guilt forms in self-defense, and undermines the unity of justice. To this end, the author takes the Deng Yujiao case as an opportunity, combines what I have learned personally, and makes a brief review on the identification of the crime of excessive defense.
1. Understanding of the relevant provisions of legitimate defense in the Criminal Law:
Article 20, Paragraph 2, of the Criminal Law stipulates, "Whoever's legitimate defense clearly exceeds the necessary limit and causes major damage shall bear criminal liability, but the punishment shall be reduced or exempted." . What we need to pay attention to is the two terms "obvious" and "significant damage" in the law. "Obvious" can be understood as "obviously appearing and easy to be noticed", and "significant damage" can be understood as "obviously appearing and easy to be noticed". seen or perceived". Obviously, "obvious" should include both subjective and objective aspects. Further analysis shows that the meaning of legitimate defense clearly exceeds the necessary limit and should include the following two aspects: 1. Objectively, the defense has far exceeded the necessary limit and caused significant damage; 2. Subjectively, any normal person can clearly feel that The defensive behavior has gone too far. In this regard, judicial officers and parties can clearly realize after the fact that this behavior does not meet the limit conditions of legitimate defense. In other words, when the defender performs his excessive defensive behavior, he clearly knows that the defensive behavior he performs has far exceeded the limit of legitimate defense and will inevitably cause significant damage to the unlawful offender, but the defender still has this understanding. Committed excessive defensive behavior. To this end, the criminal law will punish acts of excessive defense to protect the legitimate rights and interests of infringers to the greatest extent.
2. Defense thoughts on the form of guilt
As we all know, the forms of guilt in criminal law can be divided into four types: direct intention, indirect intention, negligence and overconfidence.
So, what form of guilt should the defense take? We might as well analyze them one by one in order to get the correct conclusion and discuss them with everyone.
First of all, the form of the crime of self-defense can never be direct intention;
As we all know, the so-called direct intention means that when the perpetrator performs the act, he knows that consequences that will harm society will occur. , and hope or pursue the occurrence of such harmful consequences. Obviously, this is inconsistent with the subjective mental state of the person who defended the wrongdoer. In the case of excessive defense, the actor's defense purpose is a remedial act to avoid unlawful infringement of his or her legitimate rights and interests. The subjective psychology of the perpetrator's defensive behavior is indeed carried out under the control of a direct and intentional mental state. However, this state of mind is less socially harmful than direct intentionality in criminal law. Therefore, we must recognize the content and form of the crime of excessive defense as not knowing that one's actions will cause casualties and hoping to cause casualties. Direct intention in criminal law should contain two meanings: 1. Knowing that one's behavior will cause harmful results; 2. Foreseeing the social harm of the result. If there is only the first meaning, it cannot constitute a direct intentional crime. In legitimate defense, like legitimate defense, the defender's purpose is to stop the illegal intruder and protect his or her legitimate rights and interests. Under the control of this psychological state, although the defender foresees that his actions will cause casualties to the illegal intruder, The defender has a hopeful attitude, but the defender does not think that the consequences of his defensive behavior are harmful to society. On the contrary, the defender believes that the results are beneficial to society. The results of the behavior are beneficial to society and are necessary to safeguard the legitimate rights and interests of society. Even if the defender realizes that his behavior may be excessive and cause damage, he cannot have the intention to hope that the defensive behavior will harm society. At most, he can only let the behavior lead to harmful consequences. Therefore, the form of defense against excessive crime cannot be expressed in the form of direct intention, which will be recognized by both theoretical and judicial circles.
Secondly: the form of the crime of self-defense should be determined as indirect intentionality;
The so-called indirect intentionality means that the perpetrator knows that the behavior will have consequences that will harm society when committing the behavior. The implementation still allows the mentality of laissez-faire or ignoring the harmful consequences. Justifiable defense acts are intended to protect the legitimate rights and interests of the offended person. In the face of an infringer, if you want to protect your legitimate rights and interests from infringement, you must stop the infringement and protect yourself from the infringement. Therefore, the defender should foresee the degree of harm that the offender may inflict on him, so that he can carry out defensive actions in a timely and appropriate manner. That is to say, as long as the infringing behavior of the offender can be reasonably stopped and does not exceed the limit conditions of legitimate defense, it should be deemed as legitimate defense. However, rights are essentially the limits of behavior. In a state of emergency, defenders often only focus on defense, ignore the limiting conditions in the defense process, and allow the implementation of defensive behaviors, which ultimately leads to the consequences of defensive behaviors endangering society. Therefore, if the defender indulges in legitimate defense behavior, exceeds the limit of legitimate defense, and causes harmful consequences, he shall bear criminal liability. This is the value basis for defending against excessive criminal liability.
Another example: the form of the crime of excessive defense cannot be expressed as negligence;
The so-called negligence means that the perpetrator should have foreseen that his behavior may harm society, and due to negligence Failure to foresee the consequences that would harm society. In cases of negligent negligence, it is the perpetrator's obligation to foresee the occurrence of harmful consequences. If the defensive actor is in a state of negligence, it may be due to nervousness, fear, panic, etc., and he should be aware that his defensive behavior may far exceed the limit of legitimate defense and cause harmful consequences without realizing it. However, the most fundamental characteristic of carelessness is the failure to recognize the harmful consequences. The core is "should have foreseen but failed to foresee", which is the combination of the actor's foreseeable obligation and his ability to foresee. In a theoretical and practical sense, the issue of criminal liability for negligent crimes will arise only when the objective requirements of society are compatible with the subjective abilities of specific citizens. The Criminal Law stipulates that anyone who clearly exceeds the necessary limit and causes heavy losses shall bear criminal responsibility. It can be seen that although the criminal law stipulates excessive defense, it is clearly aware that its defensive behavior will have the consequences of negligence. Therefore, the form of the offense of self-defense cannot be negligent negligence.
Finally, the form of the crime of excessive defense cannot be the fault of overconfidence;
The so-called fault of overconfidence means that the perpetrator has foreseen that his behavior will be harmful when committing the behavior. Consequences that harm society may occur, but gullibility can avoid them. The main differences between it and indirect intentionality are as follows: 1. The two have different levels of understanding. In indirect intentionality, the actor is fully aware of the possible harmful consequences, that is, the actor can clearly understand the actual possibility of the harmful consequences of the behavior; while in overconfident negligence, the perpetrator is only aware of the possible harmful consequences. foresee. Recognition and foresight are different in the degree of subjective cognition of objective things. 2. There are also differences in will factors. From the perspective of will factors, both have an attitude of not actively pursuing the occurrence of harmful results, but the requirements for this attitude are different. The objective harmfulness of indirect intentional ones is obviously greater than those who have recognized the occurrence of harmful results, but Overconfident behavior can be avoided by gullibility. At the same time, in the overconfidence fault, from the perspective of cognitive factors, although the actor realizes the possibility that his behavior will lead to the occurrence of harmful results, he also realizes the possibility of preventing the harmful results from happening. The actor has the advantage of preventing the harmful results from happening. The factors are recognized more concretely and clearly, although this recognition is not reliable. From the perspective of the will factor of overconfidence and negligence, the actor is opposed to precluding the occurrence of harmful results. When the possibility of harmful results turns into reality, the perpetrator will also take various proactive preventive measures to avoid the occurrence of harmful results. However, according to the provisions of the criminal law, the defender did not realize the possibility of preventing unfair results from occurring. The defender only clearly recognized that the defensive behavior had been unfair and that unfair consequences would occur at the time of the unfairness. However, when Unfair acts carried out on the basis of such cognitive factors can never be said to deliberately exclude or oppose the occurrence of unfair results. Therefore, the sin of over-defense cannot take the form of a sin of overconfidence.
Criminal judges do not have the right to "interpret" criminal law at all. In the process of criminal justice, judges must strictly follow the provisions of the law in convicting and sentencing. A penalty that exceeds what is prescribed by law is no longer a just penalty. Although there is some controversy over the form of guilt defense in criminal justice, the spirit and principles of the law are certain. The only mission of the judge is to determine whether a citizen's behavior complies with the provisions of the law. Therefore, whether it is theoretical research or judicial cases, the phenomenon of endless debate exists objectively. The key is how to understand it in order to comply with the original intention of the legislation, otherwise it will be difficult to make a fair judgment. In the Deng Yujiao case, the Badong County People's Court held that when Deng Yujiao suffered "unreasonable entanglement, pushing, pushing, verbal insults" and other illegal infringements by Deng Guida and Huang Dezhi, her counterattack was in the nature of legitimate defense, but it exceeded the necessary limit and was Due to excessive defense, the defendant Deng Yujiao intentionally injured her to death, and her behavior constituted the crime of intentional injury. Intentional injury. After the incident, Deng Yujiao voluntarily surrendered to the public security organ, and her truthful confession constituted surrender. After identification, Deng Yujiao has partial (limited) criminal liability capacity. Accordingly, Deng Yujiao was sentenced to be exempted from criminal punishment in accordance with the law. The author believes that Deng Yujiao's excessive defense constituted the crime of intentional injury, and it is reasonable to be exempted from criminal punishment based on other circumstances.
In short, as a lawyer, you must study the law seriously and explore the essence of the law. Only by carefully deliberation and repeated research on legal application issues, establishing legal provisions and putting them into practice can we demonstrate the dignity of the law and safeguard fairness and justice. To seek a unified understanding of the judicial process and pursue the greatest judicial and social effects.