The key is self-defense.
Attached:
Article 20 of China's Criminal Law stipulates: "In order to protect the personal, property and other rights of the state, the public, oneself or others from the ongoing illegal infringement, stopping the illegal infringement and causing damage to the illegal infringer, it belongs to self-defense and does not bear criminal responsibility.
If justifiable defense obviously exceeds the necessary limit and causes great damage, criminal responsibility shall be borne, but the punishment shall be mitigated or exempted.
Taking defensive actions against violent crimes such as assault, murder, robbery, rape, kidnapping, etc., which seriously endanger personal safety, and causing casualties to illegal infringers, is not excessive defense and does not bear criminal responsibility. "
To establish self-defense, the following conditions must be met:
(1) There must be violations of laws and regulations.
The so-called illegal infringement refers to the illegal infringement and damage to the national interests, public interests and the legitimate rights and interests of individual citizens. Regarding the scope of unlawful infringement, some people think that it only refers to criminal acts; Some people think it includes illegal and criminal acts. We think the latter view is correct. Because if illegal infringement is limited to criminal acts, it actually restricts or even deprives citizens of their right to legitimate defense, which is not conducive to cracking down on crimes and does not meet the purpose of giving citizens the right to legitimate defense by legislation. Regarding the degree of unlawful infringement, some people think that any unlawful infringement can be justified; Others believe that only violent, destructive and urgent illegal infringement can be properly defended. We believe that if we do not distinguish between the priority of unlawful infringement and the need for defense, it will lead to the abuse of the right of legitimate defense. Therefore, we agree with the latter view. Based on the above understanding, we can't or shouldn't defend ourselves against the following acts: (1) We can't defend ourselves against legal acts, including acts according to law, acts of executing orders, and legitimate business operations. (2) Self-defense cannot be self-defense; (3) Unable to defend against emergency; (4) Failing to defend the accident properly; (5) Excessive defense and emergency avoidance should not be justified; (6) Negligence crime and omission crime cannot be justifiable defense. Because of the above acts, some are justified, and some lack the urgency of infringement.
If there is no illegal infringement in fact, and the actor mistakenly thinks that there is illegal infringement, it is imaginary defense to defend the imaginary infringer. The handling of this situation varies depending on whether the actor is subjectively negligent: if there is subjective negligence, resulting in the damage consequences stipulated by law, it will be punished as a negligent crime; If there is no fault, it shall be handled as an accident, and the criminal responsibility of the perpetrator shall not be investigated. ?
(two) violations must be ongoing.
Self-defense can only be carried out when the illegal infringement is going on, which is the time condition of self-defense. The so-called ongoing means that the illegal infringement has begun and is not over yet. The so-called unlawful infringement began. It is generally believed that under normal circumstances, unlawful infringement should be marked as the beginning of unlawful infringement. However, when the real threat of illegal infringement is very obvious and urgent, even if the illegal infringement has not yet begun, it should be considered that the illegal infringement has begun. The so-called illegal infringement is not over yet. It is generally believed that the legitimate rights and interests are no longer in urgent and realistic infringement or threat, or it is impossible for illegal infringement to continue to infringe or threaten the legitimate rights and interests. The specific performance is as follows: first, the illegal infringer automatically stops the illegal infringement; Second, the infringer cannot continue to violate the law because of his own factors or other reasons; Third, the illegal infringement has been accomplished; Fourth, the infringer left the infringement scene. When the illegal infringement has not started or ended, the so-called "defense" is not justifiable defense, but the defense is not timely. For those who cause damage due to untimely defense and meet the constitutive requirements of a certain intentional or negligent crime stipulated in the criminal law, the criminal responsibility of the perpetrator shall be investigated according to law.
(3) We must defend the wrongdoer himself.
Self-defense can only be carried out against the wrongdoer himself, which is the objective condition of self-defense. This is determined by the purpose of self-defense and the illegality of the illegal infringement of the person's own behavior. "Defending" a third party other than the wrongdoer can't effectively stop the wrongdoer, and it doesn't have legitimacy or justifiable defense. In this case, if the constitutive requirements of the crime stipulated in the criminal law are met, the criminal responsibility of the perpetrator should be investigated according to law.
(four) to protect the national interests, public interests, personal rights and other rights of oneself or others from ongoing illegal infringement.
In order to protect national interests, public interests, personal, property and other rights of oneself or others from ongoing illegal infringement, it is the subjective condition of legitimate defense clearly stipulated in our criminal law. Unless it is for this purpose, self-defense cannot be established. This is the key to distinguish legitimate defense from defensive provocation and mutual illegal infringement. The latter seems to be legitimate defense, but in fact it is illegal and criminal. (1) Defensive provocation refers to the act of deliberately provoking others to attack themselves by provocation, seduction, etc. In order to hurt each other, then use self-defense as an excuse to hurt each other. (2) Mutual unlawful infringement means that both parties intentionally infringe upon each other out of unlawful infringement. It should be pointed out that in mutual fights, there may also be preconditions for justifiable defense, so justifiable defense may also be carried out: First, one party to the fight has given up the infringement, for example, it has announced that it will no longer fight or admit defeat, beg for mercy, and run away, while the other party continues to infringe; Second, in general fighting, one side suddenly uses deadly weapons, and the other side faces serious life threats. In these two cases, the actor has no objective purpose to protect the legitimate rights and interests subjectively, and can't establish self-defense. But to investigate the criminal responsibility of the perpetrator according to the specific case.
(5) The defense can't obviously exceed the necessary limit and cause great damage.
The defensive behavior cannot obviously exceed the necessary limit, causing great damage, which is the limit condition of legitimate defense. Whether it obviously exceeds the necessary limit and causes great damage is a sign to distinguish between legal and illegal, legitimate and excessive defense. The limit condition of justifiable defense means that justifiable defense cannot obviously exceed the necessary limit, causing great damage to the illegal infringer. Whether it obviously exceeds the necessary limit and causes great damage is a sign to distinguish between legal and illegal, legitimate and excessive defense.
How to understand the necessary limits of self-defense? There is no clear stipulation in the criminal law, but there are three main viewpoints in the criminal law circle in China:
(1) It needs to be said objectively. It is considered that the so-called necessary limit is the necessary limit for defenders to stop illegal infringement. As long as the damage caused is necessary to stop the illegal infringement, even if the strength and consequences exceed the damage that the other party may cause, it cannot be considered as exceeding the necessary limit.
(2) Basic adaptation theory. It is considered that the necessary limit of justifiable defense is that the nature, means, intensity and consequences of defensive behavior and illegal infringement behavior should basically adapt.
3 quite said. It is believed that the necessary limit should be the standard to stop illegal infringement in principle, and there should be no big difference between defensive behavior and illegal infringement in means and intensity. In the above three viewpoints, it is objectively necessary to say that the necessary limit standard for defenders to stop illegal infringement emphasizes the legitimacy of defense purposes, thus grasping the key to understanding the necessary limit. However, this view overemphasizes the necessity, completely ignores the objective equivalence between defense and aggression, and does not set necessary constraints on defenders. The basic adaptability theory puts forward the specific characteristics of the necessary limit, which not only recognizes that adaptability is not absolutely equivalent, but can be surpassed, but also emphasizes that it cannot be surpassed too much. The contrast is too great, which is conducive to ensuring the exercise of citizens' right to legitimate defense and preventing defenders from abusing their rights. However, we only measure them from the objective characteristics such as the nature and intensity of defense and infringement, without observing the subjective purpose of the defender, so we lack the height of observing the problem. When the strength of defense exceeds the strength of attack, deviation is easy to occur. In fact, the theory of equivalence is an organic combination of objective inevitability theory and basic adaptability theory, which not only grasps the essence and key features of understanding the necessary limit, but also helps to encourage citizens to implement justifiable defense, puts forward necessary constraints on defenders and is conducive to ensuring the correct exercise of justifiable defense. So it is quite reasonable and feasible. According to the second paragraph of Article 20 of China's Criminal Law, as long as the defensive behavior is necessary to stop the unlawful infringement, and from the objective factors such as the environment in which the unlawful infringement occurs and the strength comparison between the defender and the unlawful infringer, the nature, means, intensity and damage caused by the defensive behavior do not obviously exceed the nature, means, intensity and possible damage caused by the unlawful infringement, or although the nature, means, intensity and damage caused by the defensive behavior obviously exceed the unlawful infringement, it causes When the intensity exceeds the intensity of infringement, it is easy to have a biased understanding. In fact, the theory of equivalence is an organic combination of objective inevitability theory and basic adaptability theory, which not only grasps the essence and key features of understanding the necessary limit, but also helps to encourage citizens to implement justifiable defense, puts forward necessary constraints on defenders and is conducive to ensuring the correct exercise of justifiable defense. So it is quite reasonable and feasible. According to the second paragraph of Article 20 of China's Criminal Law, as long as the defensive behavior is necessary to stop the unlawful infringement, and from the objective factors such as the environment in which the unlawful infringement occurs and the strength comparison between the defender and the unlawful infringer, the nature, means, intensity and damage caused by the defensive behavior do not obviously exceed the nature, means, intensity and possible damage caused by the unlawful infringement, or although the nature, means, intensity and damage caused by the defensive behavior obviously exceed the unlawful infringement, it causes