In all criminal cases, "legitimate defense" may be one of the keywords that can most affect the nerves of the public opinion media. Although in the mainland's recent typical cases of justified defense, the prosecution has taken the initiative to bear the burden of proof of legitimate defense, there are still conflicts of opinion between the procuratorial organs and the public security organs, between the higher-level procuratorial organs and the lower-level procuratorial organs, and the situation of repeatedly returning to supplementary investigations, which also shows that the proof of legitimate defense is relatively difficult, and there are often differences in judicial practice.
The "holistic" mode of proof, which effectively balances the rules of thumb and the rules of evidence and guides the procedures of substantive elements, may be a possible choice for justifiable defense. This proof model follows the proof logic from "atomic" analysis to overall cognition, and tries to realize the deduction from the constituent elements of "openness" to the adjudication result of "closure", from the evidentiary information of "atom" to the proof system of "whole".
First, the rational use of rules of thumb and "generalizations"
If the "atomist" proof mode is based on the analysis and reasoning of the evidence "atom" and the extraction of key information from it, then the "holism" proof mode is based on the "atom" analysis, integrating all the evidence information to form an overall cognition and trying to complete the construction and narrative of the "story", in addition to following the rules of evidence, it is also necessary to combine the rules of thumb and the law of logic to make the "overall cognition" more plump and restore the facts of the case to the greatest extent.
In a recent case in which legitimate defense was found, the reasoning part of the judgment document reads: "Judging from the circumstances of the murder weapon held by the infringing party, the number of people, the acts that have been committed, and the place where the acts were committed, judging by the level of ordinary people's understanding, the unlawful infringement has reached the level of seriously endangering the personal safety and life safety of Zhang Namula (the defendant in the original trial), and is in line with the ongoing violent crime of committing murder as provided for in the above-mentioned law." (Tianjin No. 1 Intermediate People's Court (2018) Jin 01 Xing Zhong No. 326 Criminal Judgment) It is not difficult to find that "judging by the level of ordinary people's knowledge" means judging according to common sense of experience, and the rules of thumb and logic do play a pivotal role in the process of justifying defense.
Case 1: Wang and Li are delivery workers at a restaurant in Shanghai, and the two have a dispute over the delivery of takeaways, and a dispute occurs in the aisle outside the kitchen of the restaurant. Li hit Wang's head several times with his fist, and Wang was pushed into the kitchen by Li, and he picked up a kitchen knife and hit Li's head and shoulder, causing Li to be slightly injured in the second degree. When reviewing the case, the prosecutor noticed that Wang had undergone surgery for cerebral hemorrhage, and there was 10 centimeters of scalp on the left side of the head without hair. The on-site surveillance video at the time of the incident showed that Li Mou, who was tall and tall, took the initiative to attack first, and each punch directly attacked Wang's head, and the weak Wang mou dodged everywhere at the beginning and did not fight back, because his head was hit many times and hit the wall, he was forced to retreat to the kitchen and then picked up a kitchen knife to fight back.
In Case 1, in the face of Li's infringement, Wang conducted a defense, but whether it was legitimate defense, it is necessary to consider the degree of violence of the unlawful infringement and whether the defense is controlled within the necessary limits, and the criterion for judging should be based on the defender, combined with his psychological state in the face of the unlawful infringement. In this case, the prosecutor found that the defender had undergone surgery on his head, and the aggressor directly attacked the defender's head and even hit the wall as a result. According to common sense of experience, the once injured body parts are more afraid of being hit, and when they are attacked, they often subconsciously protect the parts that have been injured, and Wang Mou may relax his control over the defense limits under the premise that the injured parts have been hit. Therefore, even if the infringer in this case only used his fist to hit the defender, and the defender used a kitchen knife to counterattack, his defense did not clearly exceed the necessary limit, which is a comprehensive judgment made with reference to the rule of thumb after integrating the evidence information, which is in line with the idea of "holism".
Of course, the application of the laws of thumb and logic is not arbitrary, and certain laws and methods need to be followed. In this regard, the "generalization" in the Anglo-American evidence theory is a reference theory. From evidentiary facts to facts to be proved, i.e., from specific evidence to specific conclusions, each of these inference steps needs to be justified by reference to at least one "generalization".
Second, the proof of "interlocking links" rather than the demand for "confirmation"
In fact, even in the Anglo-American theory of evidence, there is no agreement on how "holism" should be constructed and how it should be applied, but there is already consensus on some specific issues that embody "holism", for example, whether or not a piece of evidence is accepted may depend on the proof of other facts, that is, the existence of "interlocking" proof, when a car passes through a certain place at a specific time, unless there is evidence that the car is the defendant's car, the aforementioned facts have no probative force in the case.
The relevance of the evidence of an act or statement depends on a particular presuppositional fact, and a disconnect between the facts loses its probative power. It should be noted that the "interlocking" between the evidence information does not mean that the evidence corroborates each other, and one piece of evidence may include multiple pieces of information, which may also be "interlocked" between them, and may even be in line with the integrity of the story of "holism". Especially in the process of proof of legitimate defense, its essential purpose is to commit crimes, which is to try to use reverse information to disintegrate the proof system of guilt, and it is not necessary to force "confirmation" in fact, otherwise it may lead to artificially increasing the difficulty and determination standards of proof of legitimate defense. In addition, another reason why there is no need to force "confirmation" is that with the development of the times, some new problems in judicial practice are beyond the interpretation of the theory of confirmation.
Case 2: Defendant Jiang Fangping went to Zheng Shuiliang's house to cause trouble after learning that Zheng Shuiliang, who had had a dispute with him, had provoked his father Jiang Liangxin at Jiang Jinmu's house that day. Because Zheng Shuiliang was not at home, Jiang Fangping returned and took a kitchen knife from the kitchen of Ye Xiaofei's family who passed by and hid it behind him. When Jiang Fang paralleled to the village's Liugengen Gate Road, Zheng Shuiliang rushed to and beat Jiang Fangping with an iron stick, jiang Fangping immediately took a kitchen knife and confronted Zheng Shuiliang, and used a kitchen knife to cut Zheng's left wrist joint, and Jiang Fangping was also slashed by Zheng Huaxian, the daughter of Zheng Shuiliang, who arrived later.
In the determination of legitimate defense, it is necessary to distinguish between mutual beatings and acts of legitimate defense, and the parties holding the tools prepared in advance cannot simply be concluded that there is an intention to fight or attack, but the intention to prepare the tools in advance should be proved "interlocking" according to the relevant facts. In Case 2, the court ultimately found that "after Jiang Fangping learned that Zheng Shuiliang, who had a dispute with his father, provoked his father, he looked for Zheng Shuiliang everywhere and prepared a kitchen knife to deliberately retaliate, and he had the intention to fight in advance, and then actively committed harmful acts." "Jiang Fangping took the knife and hid behind him after the trouble was unsuccessful, and the disturbance was out of the initiative and the hidden knife was also the preparation for further action after his trouble was unsuccessful, the two are related, which means that Jiang Fangping prepared the tools in advance for the purpose of fighting rather than defense, so his behavior naturally cannot be identified as defensive behavior." However, the tools used in advance may also be used for defense in addition to attacks.
(3) Pluralistic forms of doubt
When the Criminal Procedure Law of the Mainland was revised in 2012, the conditions for determining "credible and sufficient evidence" were refined, and the expression "beyond reasonable doubt" was introduced to achieve the combination of subjective and objective elements. However, although the legislation of "excluding reasonable doubt" has been completed, the thinking of "excluding reasonable doubt" has been lacking in judicial practice.
In the context of the "holism" proof model, "the evidence is indeed sufficient" and "excluding reasonable doubt" means that the proof system composed of the positive information contained in the "atom" of each evidence has formed a holistic cognition, which is enough to be criminalized, and "reasonable doubt" is the reverse information contained in the evidence "atom", if it cannot be excluded, it means that there is doubt in the case, and according to the principle of suspicion, it should be treated as a crime.
In the case where the person being prosecuted claims legitimate defense, as mentioned above, the prosecution shall bear the burden of proof, and if it cannot be proved that there is no legitimate defensive act, the risk shall be borne by the prosecution, and the existence of legitimate defensive conduct shall be determined. Therefore, in order to improve the reliability of adjudication, under the premise of ensuring the legitimacy of evidence (information), more information should be included in the adjudicator's field of vision to provide reference for their judgment. In particular, in cases involving legitimate defense, the source of information should not be limited to the legal form of evidence.
In the process of proof of legitimate defense, subjective facts prove that it is more difficult, and the purpose of proof is to form reasonable doubts, and it is possible to include more information included in the social investigation report without being limited to the statutory form of evidence, so as to provide reference for the judgment of the adjudicator. This is not only an attempt to deal with the difficulty of proving subjective facts, but also in line with the approach of the "holism" proof model, that is, the use of diversified information carriers to fill in the "gaps" in the evidence, and then form an overall cognition or generate reasonable doubts.
