Dr. Li Yong: review of the relationship between affray and defense (from entity to procedure, from practice to theory)
A review of the relationship between affray and defense -- centered on the construction of typed entity and procedural rules
Content abstract: in judicial practice, cases of intentional injury are often regarded as mutual affray, which negates self-defense. The traditional theory regards injury intention, revenge motive and whether there is any intention to fight in advance as the standard to determine the mutual fight. This "intention centered" position is not operable and cannot solve the generalization problem of mutual fight. Based on the principle of superior interests in self-defense, we should divide the fight into real fight and non real fight. The real fight should be limited to the mutual attack agreed by both parties in advance (hereinafter referred to as "covenant"), only in this sense, the fight and defense are mutually exclusive relations. Through the pre determination of the time point of the fight, it can not only prevent the generalization of the fight, but also have operability; the non real fight is not always exclusive of defense, returning to the general intentional injury, defense intention, expected infringement, self-defense Based on the solution of type under the framework of recruitment infringement, the identification rules of type are constructed. In accordance with the substantive identification rules, the object of proof in the case of affray is transformed into objective and prepositional.
Key words: self defense, mutual fight, expected violation, instigation of Defense
Affray and defense is one of the most complicated and confusing problems in the theory and practice of criminal law in China. In judicial practice, fighting and injuring behaviors are often regarded as fighting, which leads to the generalization of fighting; the theoretical circle adheres to the concept that "fighting and defense are mutually exclusive", and lacks the research on the type and refinement of fighting. [①] for a long time, the academic view on the relationship between mutual assault and defense is surprisingly consistent: both sides of mutual assault are illegal, so they have no right to claim self-defense, only in certain circumstances there may be self-defense: one side stops the infringement, the other side continues to infringe; one side suddenly uses lethal tools in the light micro mutual assault.  this kind of extensive research has intensified the generalization of mutual fight. When the criminal law circle rethinks the cause of the "zombie" of the self-defense clause, it seems that it omits the important factor of "fighting each other". It is urgent to reexamine the relationship between affray and defense, analyze the self-defense problems in the affray by types, and put forward the type identification rules from two aspects of entity and evidence, and draw different solutions according to the categories of cases.
1、 Sorting out the judicial chaos of self defense in mutual assault
The author makes a statistical analysis of the first instance criminal judgment of intentional injury cases involving mutual assault from January 1, 2016 to January 1, 2019. There are 14640 such cases in total, of which only 930 are involved in justifiable defense, accounting for 6.3% of the total cases. Of the 930 cases involving self-defense, 8 involved in acquittal, of which only one was acquitted on the basis of self-defense; two were acquitted on the basis of insufficient evidence; one was acquitted on the basis of obvious minor circumstances; and the other four were acquitted on the basis of insufficient evidence. According to the above data, once the case involves affray, the probability of self-defense is less than one in ten thousand. Some of the reasons for not recognizing the justifiable defense are expressed as "fighting each other", some are expressed as "intentionally hurting each other", some are expressed as "not meeting the conditions of justifiable defense", and the substantial reasons are all related to fighting each other. In practice, it can be summarized as the following types to negate self-defense on the basis of mutual assault:
（1） A fight is a fight
In judicial practice, cases of intentional injury are used to be regarded as mutual assault as long as there is a fight, regardless of the cause and right or wrong. The judiciary is concerned about who died and who was injured. As time goes on, there is a kind of inertial thinking - "fighting is fighting", and "Whoever dies or injures is reasonable" in the fighting. Judicial officers seldom carefully examine the evidence of right or wrong in the cause of the fight, and judicial documents rarely express this aspect. The classic expression of facts in the judgment document of intentional injury case is: "quarrel due to trifles Fight... ".
（2） To fight back is to fight each other
The basic form of intentional injury cases is that one side beats the other side and the other side fights back, forming a situation of two people fighting each other. In judicial practice, it is often defined as "fighting each other", leading to "fighting each other as long as the other side fights back", and then denying self-defense. For example, the following case:
[case 1: Luo's intentional injury case] when the defendant Luo persuades the victim Liu and others to tear Cao, the safety officer of the construction site, he has a dispute with the victim Liu. After the victim Liu beat the defendant Luo with a wooden stick, the defendant Luo punched Liu's nose, causing Liu's nose to be injured and bleeding (bilateral fracture of nasal bone belongs to minor injury II Grade). The defendant, Luo Mou, argued that Liu Mou beat him first, and then he beat Liu Mou, not intentionally. In the judgment, the defendant Luo and the victim were found to have intention to hurt each other, and were sentenced to six months' control for the crime of intentional injury. 
In this case, Luo was beaten by the other side with a stick, and the fight back should be a defense. The defendant should not be required to "fight back" or be deemed to be fighting each other.
（3） The motive of hurting and revenge is to fight each other
In judicial practice, the theory of necessity of defense intention is generally adopted, and it is considered that defense intention and injury intention (intention) are mutually exclusive. However, as the subjective thoughts of the defendant, the intention of defense and the intention of injury are intertwined, which are normal, difficult to distinguish from the perspective of norms, and difficult to prove from the evidence, leading to the practice that the perpetrator's intention of injury (intention) is often regarded as mutual assault, and then the justifiable defense is denied. For example, the following case:
[case 2: Xiong's intentional injury case] the victim Wang, yin and Yang wandered in the street after drinking. The defendant Xiong drove by, and Yin slapped Xiong's door without any reason, causing a quarrel. Yinmou holds Xiong's collar with his hand, and presses the cigarette end that Xiong is smoking on the corner of his mouth, and beats Xiong's face, Yang and others beat Xiong's head. Xiongmou opens the jumping knife he carries with him and gets out of the car. The two sides fight each other (someone in yinmou holds the steel pipe and the welding block). Xiongmou stabs with the knife in his hand, causing Wang Mou's death and yinmou's injury to three people. The defendant Xiong was sentenced to 12 years' imprisonment for intentional injury. The procuratorial organ thinks that it is over defense, and the judgment thinks that the subjective purpose of the defendant is "the other party will stab in disorder if he hits himself", which indicates that there is intention of injury, that is, to fight each other, not to defend. [iv]
In this case, four people, including Yin Mou, caused trouble after drinking, grabbed their collars, burned them with cigarette butts, beat their faces, and beat them with weapons. The violence escalated step by step. Xiong Mou fought back with a knife, and was judged to be fighting each other and excluded from defense, which may be inappropriate.
（4） If there is a dispute in advance and the tools are prepared in advance, it means fighting each other
It is normal to have disputes in advance in injury cases. The tool of preparation in advance generally means that the perpetrator has expected infringement, which may affect the determination of defense, but it can not exclude defense altogether. For example, the following case:
[case 3: case of intentional injury by Bo MOU] the defendant, Bo Mou, quarreled with his relative, Wang Mou Yi, on the second floor of a shopping mall because of trifles, and then fought each other, and was persuaded to open up. After Bu went back to the first floor of the building materials shop, he took out a wooden knife with a single blade. Bo said, "Wang is still shouting to kill me on the second floor. If he fights again, I will stab him with a knife. If he can't leave, he can't hit me." Wang, with a stick, went to the first floor to chase after Bo and threatened to kill him. Bo runs around the car to escape. Wang chases him with a stick. Later, Bo stabs him in the back, buttocks and legs (Wang dies). According to the judgment: Bu said he didn't take anything to eat when fighting on the second floor of the supermarket, so he was angry, so he prepared a knife. If Wang beat again, he would stab him a few times, so his intention to hurt was subjective, which did not constitute justifiable defense. He was sentenced to 15 years' imprisonment and three years' deprivation of political rights for the crime of intentional injury. 
In this case, it is reasonable for the defendant to prepare tools for self-defense in order to prevent the other party from going downstairs to continue beating. In the case of being chased and beaten by the other party with a stick, the defendant does not lose the right of defense due to the preparation of tools.
（5） You can't defend if you do it first
In general, one party can start first and the other party can defend. The first party can not claim defense, but not in any case. In practice, it is often one-sided to think that we can't defend ourselves if we start first. For example, the following case:
[case 4 case of Li Mou's intentional injury] the defendant Li Mou and the fellow villager Xiao Mou were in a chess and card room, arguing with the victims Peng Mou, Guo Mou and other people, and fighting (Li Mou and others started first). Later, Peng and Guo beat Li and others with sticks, while Li and Xiao escaped. Li was alone in the escape and was chased by Peng and Guo. Peng holds down Li, Guo smashes with a wooden stool, Li stabs Peng and Guo with a dagger (Peng is seriously injured, Guo is slightly injured). According to the judgment, the defendant Li and others beat Peng earlier, and Peng and others chased Li for beating him. Finally, Li stabbed him with a dagger, and both parties were responsible. The defendant Li's act did not have the nature of defense, so he was sentenced to life imprisonment for intentional injury and deprived of political rights. 
In this case, although Li started first, he escaped and was caught up, and was attacked by two people. It is questionable that Li lost his right of defense from the beginning because he started first in the previous stage.
（6） Avoid before you defend
Different from emergency avoidance, self-defense has no obligation of retreat in principle, but practice often imposes the obligation of retreat. For example, the following case:
[case 5: Nie XX intentionally injured case] when the defendant Nie XX drove to stop at the door of a barbershop, the door was scratched by the floor lock arranged by Xi XX, the owner of the ornament next door. Nie XX kicked the floor lock several times, and then went to the barbershop to have a haircut. Xi 9 then called his brother Xi 5, Xi 5 came to the barber shop to scold and kick Nie's car. Nie rushes out of the barber shop, conflicts and fights with his fellow countryman and Xi 5. After that, both sides are advised to leave. Nie drives away. Xi's 5 cousin, 6 after hearing news, shovel and so on rushed to the scene, and when he returned to the spot, he was chasing him with Xi 5. Nie picks up the stick during his escape, fights with Xi 5 who holds a handsaw behind him, hits Xi 5 on the head, and Xi 5 immediately falls to the ground (later dies). Nie and so on, shovel sticks to continue to escape, Xi 6 and others continue to fight around with shovels and so on, Nie and some injured after drilling into the pickup truck hiding. According to the judgment, when the defendant Nie was chased by Xi 5 and others with arms, he did not take the way of emergency, but picked up the stick to fight against Xi 5 with violence and hit Xi 5 on the head when he was not hurt. This Act does not constitute justifiable defense. Nie was sentenced to 11 years' imprisonment for the crime of intentional injury. 
In this case, after both sides were advised to leave, Xi gathered many people to fight (and some people held a handsaw), Nie picked up the stick to fight back, which should be defense. It is difficult for NIE to avoid danger