Research on the entity and procedure of self-defense
Author: Li Yong
(Ph.D. candidate, School of law, Southeast University, Deputy Attorney General of Jianye District People's Procuratorate, Nanjing City, Jiangsu Province, and national expert in procuratorial business)
Source: the original version is contained in the 9th issue of China prosecutor in 2019. It may be slightly modified. Please refer to the original text for reference.
Abstract: in addition to special defense, the illegal infringement in self-defense is not limited to violence, nor to criminal illegal infringement which constitutes a crime. Self defense can be directed against the person without responsibility. The limit of justifiable defense should insist on examining the necessity first, then judging the superior interests and measuring the legal interests. Specifically, we should pay attention to distinguishing five rules: Defense type defense and attack type defense, integration, dynamic situation, etc. The conclusion procedure of a case of justifiable defense shall distinguish the situations of withdrawal of the case by the public security organ, non prosecution by the procuratorial organ and judgment by the court.
Key words: due defense, illegal infringement, excessive defense, case settlement procedure
The case of Yuhuan in Liaocheng, Shandong Province and Kunshan in Minghai, Jiangsu Province activated the sleeping clause of self-defense in criminal law. In practice, there are a large number of acts that should be considered as justifiable defense and are treated as crimes. This is worthy of our reflection. From the perspective of judicial application, self-defense faces many substantive and procedural problems. This paper intends to analyze several common substantive and procedural problems.
1、 "Illegal infringement" in justifiable defense
According to the first paragraph of Article 20 of the criminal law of China, the general theory of criminal law of China holds that illegal infringement is the cause of justifiable defense, and it can't be called justifiable defense without illegal infringement. How to understand the "illegal infringement" here has become the primary issue.
（1） Whether "illegal infringement" is limited to violence
In practice, most of the cases of justifiable defense are against violence. In addition, the special defense in the third paragraph of Article 20 of the criminal law is limited to violence, which raises the question whether justifiable defense can be carried out against non violence. The author believes that the illegal infringement of self-defense can be violence against the person, or property, freedom, reputation, etc. in a relatively peaceful way.
First of all, in terms of the provisions of the criminal law, the first paragraph of Article 20 of the criminal law does not limit the cause and condition of self-defense to violence and illegal infringement, but only stipulates that "for the sake of the state, public interest, personal, property and other rights of oneself or others, they shall not be subject to the ongoing illegal infringement". From the perspective of this provision of the criminal law, the illegal infringement here can be against personal rights, property rights, and other rights; the way of conduct is not limited to violence. German scholar Roxin also believes that self-defense "in principle is all personal benefits, that is, life, health, freedom, property, custody (gewahrsam), marriage, housing rights, and so on."  However, in the traditional concept of judicial practice in China, it seems that it is difficult to accept the infringement of property rights by peaceful means, such as theft
Conduct self-defense. ［2］
Secondly, self-defense, as a matter of preventing the violation of law, will not limit the violation to violence, no matter whether it adopts the general theory of criminal law in China and Japan, or the popular theory of personal protection (preservation) and legal protection (confirmation) in German criminal law. In order to protect more superior legal interests, even if it is not violence, as long as there are other elements of self-defense such as urgency, self-defense can be carried out; similarly, in order to protect personal interests or confirm the effectiveness of legal norms and legal order, even non violence, the defense should also be carried out. For example, the following case:
[case 1] Zhang was involved in MLM organization, his ID card and mobile phone were confiscated, even if he went to the toilet, he had to be followed and guarded by two or three people, and he was detained illegally for nearly 20 days, during which he was beaten many times and failed to escape many times. In the early morning of February 10, 2018, when Zhang went to the toilet under the guard of Wang, the supervisor, there was a dispute between the two sides. Wang was accused of pinching Zhang's neck, and Zhang strangled him with a band on the brim of his down jacket when he fought back. ［3］
In this case, Zhang was illegally restricted personal freedom in MLM organization, and his personal freedom is being illegally violated, which should be said to meet the conditions of the cause of justifiable defense.
Finally, in judicial practice, the urgent condition of self-defense is wrongly understood as that the way of conduct can only be violence. In fact, no matter whether the object of illegal infringement is personal right, property right or even personality right, or whether the way of conduct is violent or peaceful, the key is to meet the requirements of urgency, that is, the illegal infringement targeted by self-defense must be urgent, that is, "the risk of legal infringement is urgent, or the legal infringement is existing or imminent. In this situation, there is no time to seek the protection of the public authority. In order to protect the legal interests of the positive infringement, it is necessary to carry out some counterattack. "Just based on this," self-defense and emergency avoidance are called emergency actions together. ". ［4］
（2） How to understand "illegal" in "illegal infringement"
Is the "illegality" of illegal infringement in self-defense limited to criminal acts or includes general illegal acts? There are disputes in the field of criminal law in China. However, it is generally believed that the "illegality" here does not need to reach the level of constituting a crime, which can be either a criminal act or other general illegal acts. Judicial practice should stick to the general view.
First of all, Article 20 of the criminal law of our country uses "illegal", and does not use "crime". Therefore, there is no reason to limit illegal infringement to criminal act from the perspective of literary interpretation. "To be called 'illegal', there is no need to be a 'violation' of the constituent elements.". ［5］
Secondly, as a kind of emergency self-defense right, it is unrealistic to require the defender to judge whether the other party's behavior constitutes a crime or a general violation of the law under the urgent circumstances at that time. For example, whether the other party's beating behavior may lead to the above consequences of minor injury, whether the other party's theft of property may reach the standard of a large amount, the defender can not judge at all.
2、 The question of whether we can defend the irresponsible person
Is it justifiable to defend the illegal infringement of the person who has not reached the age of criminal responsibility and does not have the ability of criminal responsibility? This is a controversial issue in the theory of criminal law in China. The traditional theory holds that the illegal infringement in self-defense can only be the act of a person who has reached the age of criminal responsibility and has the ability of criminal responsibility (hereinafter referred to as the necessity of responsibility). Professor Feng Jun, a criminal law scholar, holds a similar view when commenting on the case of Kunshan and Minghai. ［6］
In my opinion, it is not appropriate to say that the ability of responsibility is necessary, which should be abandoned in judicial practice.
First of all, the "illegal infringement" in the first paragraph of Article 20 of the criminal law of our country does not exclude the violations committed by children, mental patients without responsibility and drunk people. As mentioned before, if we think that "illegal" here is only criminal illegal in criminal law, according to the theory of three levels of crime, illegal should also belong to the illegal class, whether the perpetrator has reached the age of responsibility and whether he has the ability of responsibility belongs to the responsible class. It is necessary to say that the capacity of responsibility is actually an outdated position of subjective illegality. But in the background of objective illegality, it is not appropriate to stick to subjective illegality. If we think that the "illegal" here also includes other illegal acts, there is no reason to limit it to the acts of people who have reached the age of responsibility and have the ability to be responsible, because even if minors or mental patients infringe on the interests of others, their legal guardians should also bear the responsibility for infringement, which is still an illegal act, and they will not be evaluated as legal acts in law.
Secondly, self-defense, as a matter of preventing illegal activities, is essentially to solve the problem of conflict of interest in real life, to protect one kind of interest and sacrifice another kind of interest that is not worth protecting. In this sense, as long as the act of infringing upon legal interests, whether or not it has the ability of responsibility, in order to protect the interests in a superior position, it can carry out self-defense. Even for the infringement caused by the drunk, the mentally ill, the children, the people who fall into the wrong cognition and the people who have the wrong behavior, self-defense is allowed. This is the original intention of self-defense legislation.
Thirdly, as an emergency self-help behavior, self-defense is difficult to judge whether the other party has reached the age of responsibility and whether it is a mental patient without responsibility. Otherwise, it is not conducive to the protection of the legitimate interests of the defenders, but also against the basic common sense. For example, the following case:
[case 2] Wang XX (13-and-a-half-year-old, 170cm tall) joined the cult organization "Almighty God" with his parents. He was bewitched by the cult and chased Zhang XX, a female victim, with a knife in a fast-food restaurant. In the face of this sudden attack, Zhang picked up the chair and smashed it at Wang, smashing the knife in Wang's hand, and causing Wang's arm fracture (identified as minor injury).
According to the necessity of responsibility ability, because Wang is only 13 years old, he is a person with no responsibility ability and can't defend himself, Zhang constitutes the crime of intentional injury. I'm afraid this conclusion is unacceptable. In the face of cutting and killing, Zhang can't judge whether Wang has reached the age of 14. It is necessary to say that in order to solve this irrationality, we should put forward a specific analysis plan, that is, if the defender does not know that the infringer is a person without responsibility, he can exercise self-defense; if the defender knows that the infringer is a person without responsibility, he can not exercise self-defense; if he knows that there is no other way to avoid it, he can also exercise self-defense defence.  this kind of solution cannot be logically self consistent. According to the subjective position of illegality, it is impossible to carry out self-defense for those who have no responsibility, but it is proposed here that self-defense can be carried out under specific circumstances. This theoretical contradiction is unacceptable. Moreover, it is too arbitrary to lay the foundation of self-defense on whether the defenders know or not and whether they can avoid it.
3、 The limit of Defense
Article 20, paragraph 2, of the criminal law of our country stipulates: "if self-defense obviously exceeds the necessary limit and causes significant damage, criminal responsibility shall be borne, but punishment shall be reduced or exempted." How to grasp the limit of defense in judicial practice? The author believes that the standards of the limit of self-defense in our country should be adhered to: first, the principle of necessity; second, the principle of superior interests (the measurement of legal interests).
First of all, the standard of defense limit can not exceed the provisions of criminal law. The second paragraph of Article 20 of the criminal law of our country is clear about the legislative standard of excessive defense: first, it can not obviously exceed the necessary limit, that is, the principle of necessity. The necessity here can draw lessons from the German criminal law theory, that is, "in order to stop attacks, based on objective prior judgment, defense must be appropriate To say whether defense is necessary or not is to say the act of defense, not the result of defense. In other words, it is the nature and mode of defense behavior that is examined. ". (9) second, we should not cause undue major damage.