【Article/Observer Network Columnist Lin Li, Zheng Qiong】
Recently, a non-prosecution decision published by the China Procuratorial Network has aroused heated discussion on the Internet -
In Xianyang, Shaanxi, when the husband Qiu beat his wife at his wife's work unit, his wife's colleague Yang came forward to stop it. In the process of tearing, Qiu bit Yang's face, the latter hit the former with a thermos, and other staff members of the unit pressed Qiu to the ground and called the police. After the police arrived at the scene, they found that Qiu mou had died.
The procuratorate believes that Qiu Mou knows that he has a relatively serious hypertensive heart disease and coronary heart disease, and still drunkenly goes to the public to cause trouble, Yang Mou does not know him and cannot foresee that he has a serious heart disease; whether it is to help colleagues in the unit, or to defend his face and eyes from Being bitten by Qiu, Yang Mou's behavior should be regarded as legitimate defense, and he decided not to prosecute him according to law.
This judgment was jokingly called "Yangjian News" by many netizens, and after the emergence of this news, some media reporters searched the China Judgment Document Network with the keyword of "domestic violence + legitimate defense", and the results showed that between 2014 and 2021, only one of the 116 public judgment documents was identified as "legitimate defense" by preventing domestic violence from causing the death of the abuser.
1/116, the probability of anti-domestic violence being found to be legitimate defense is so low, which highlights the preciousness of the judgment in the above case. The hidden question behind this phenomenon is, what is the difficulty in identifying?
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Identify the difficulties
When exploring the reasons for the difficulty of determining domestic violence, we must first clarify two basic legal concepts - "domestic violence" and "legitimate defense".
According to the Anti-Domestic Violence Law, domestic violence refers to physical, mental and other violations committed by family members by means of beatings, binding, maiming, restriction of personal freedom, and frequent verbal abuse and intimidation.
This legal definition contains two aspects: first, domestic violence is violence between family members, in addition, violence committed between people living together outside the family (such as living boyfriend and girlfriend), also with reference to the provisions of the law; second, domestic violence is physical, verbal and spiritual violence, including physical, sexual, emotional and other aspects of violence, we often say "cold violence" is also among them.
According to the Penal Code, legitimate defence refers to the act of stopping an unlawful infringement in order to protect the State, the public interest, the person, property and other rights of oneself or others from ongoing unlawful infringement. The Criminal Law stipulates that legitimate defense shall not bear criminal responsibility;
It can be said that legitimate self-defense is the most important weapon given by law to citizens to resist unlawful acts of violence, and the law has equipped this knife with a sheath that exempts or mitigates responsibility to prevent citizens from being harmed.
However, according to the statistics of 1/116, the frequency of use of this knife is not low, but the sheath does not seem to be very good.
The author also searched the China Judgment Documents Network with the keyword of "domestic violence + legitimate defense" and found that among the 116 judgment documents, 68 were criminal cases, 41 were civil cases, and 7 were administrative cases. It can be seen that in criminal, civil and administrative trials, it is a common problem to identify anti-domestic violence acts as legitimate defense.
The main reasons for this are as follows:
First, the judiciary has always been cautious about the application of the legitimate defence system.
After the "Kunshan Anti-Homicide Case", the application of the legitimate defense system in criminal cases has made a breakthrough, but in civil cases, it is difficult to determine domestic violence and legitimate defense due to insufficient evidence and the judge's fear of retaliation by the perpetrator.
For example, when I was a judge, I tried a divorce case, the woman sued for the first time, and the author granted the divorce on the grounds that the man had domestic violence (the woman's unit issued a certificate), but after the judgment, the author was subjected to violence and even death threats from the man for a long time.
Second, the applicable condition of legitimate defense is to stop the "ongoing unlawful infringement", but in domestic violence cases, it is more difficult for the victim to resist immediately; but it has suffered domestic violence for a long time, and it is feared all the time, when the perpetrator has stopped the violence before committing countermeasures or even injuries and killing the perpetrator, at this time, because the violence carried out by the perpetrator is difficult to identify as "ongoing unlawful infringement", the victim's countermeasure defense is not timely, and does not constitute legitimate defense.
For example, in the (2020) Case of Sun Xianghong's Intentional Homicide No. 404, the defendant Sun Xianghong was subjected to long-term domestic violence by the victim Xin X, and was threatened by Xin X for divorce, and he felt resentful and then had the idea of killing. Sun Xianghong mashed a large amount of sleeping pills prepared in advance into the drink in his rental room, and gave it to Xin, who was drinking, to drink, and after Xin was unconscious, he slammed Xin on the head with a bottle and a rolling pin. The court ruled that Sun Xianghong's act of countering violence with violence after the incident was clearly not a legitimate defense.
Third, acts of mental violence are not urgent and strongly aggressive, so the act of "defending" against such domestic violence does not have the causal conditions and does not constitute legitimate defense, or even defensive behavior.
For example, in the (2021) Qian01 Xingchu No. 71 Gu Qinglan crime of intentional homicide, the victim Gan Mou continued to drink heavily and insult Gu Qinglan after getting up, and Gu Qinglan beat Gan to death in the kitchen of his home with a crutch in a state of anger. The court ruled that although Gan had domestic violence in normal times, at the time of the case, Gan only had abusive mental violence and did not have an imminent danger, so Gu Qinglan's behavior was not identified as a defensive act.
Fourth, domestic violence cases mostly occur between family members, based on emotional bondage, the victim usually does not retain relevant evidence of the infringement, and other family members are also confined to family affection and do not testify; due to insufficient evidence, it is difficult to determine that the perpetrator committed domestic violence, so the victim's "defense" behavior is difficult to be identified as legitimate defense.
He is the stone of the mountain
Domestic violence is a global problem, and in foreign countries, there is also a problem that anti-domestic violence acts are difficult to identify as legitimate defense.
Compared with Chinese and American laws, there is little difference in the provisions on legitimate defense, and they all make clear restrictions on the defense limits and time ranges of defenders. However, the U.S. criminal law has a broader scope of legitimate defense when dealing with domestic violence cases, the most representative of which is the "Battered Woman Syndrome".
"Battered women syndrome" legally refers to a special pattern of behaviour exhibited by women who have been violently abused by their husbands or boyfriends for a long time. Originally a psychological term, the concept consisted of cycles of violence and learned helplessness, mainly to address the inability of abused women to end their marriages legally, and involved complex issues of criminal policy and ethics, which raised the question of whether the killing of their husbands by abused women could be justified as self-defense.
In legal science, there is overwhelming support for the introduction of expert evidence for "battered women syndrome", and at the same time, at the practical level, several court of appeals in the United States has also adopted evidence for "battered women syndrome". At present, most state laws in the United States have defined domestic violence as a crime, stipulating that the commission of acts related to domestic violence will be punished by criminal law, and women who are victims can also receive more legal remedies.
In U.S. criminal law, expert testimony plays an important role in cases of "battered women syndrome." Expert testimony, which consists mainly of the situation of domestic violence suffered by the victim and the impact on the mental state of the victim, is intended to be used in two ways: on the one hand, to explain why the victim cannot take legal means to suspend the marriage or seek legal assistance;
In cases of abusive husband-killing, women raise defences of justifiable defence, usually on the grounds of "abused women syndrome", and evidence such as expert testimony is provided. For example, State v. The Judge found that the Judge considered that the Defendant was expected to be violent against the victim without a weapon, based on the fact that the Defendant had been subjected to violence for a long time and was significantly inferior in size to the victim and had one leg disabled, the Judge considered that it was unreasonable to expect the defendant to confront the victim without a weapon.
That is to say, in such cases, it is urgent and realistic to prove through expert testimony, etc., that the behavior of the abused woman conforms to the description of the behavior pattern of "battered women syndrome", constituting legitimate defense, so that the jury believes that when the defendant committed the act of killing, the defendant believed that the risk of death or serious injury he faced was urgent and realistic.
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The psychological concept of "battered women syndrome" can be appropriately used as a reference in cases of domestic violence. During the trial of the husband-killing case of Liu Shuxia in Hebei Province in 2003, the Hebei Provincial Women's Federation invited experts on domestic violence from the China Law Society to make an appraisal of "battered women syndrome" for Liu Shuxia and to issue testimony, and the defense lawyer suggested that the court consider Liu Shuxia's "abused women syndrome" and use it as evidence of legitimate defense. Although this defence was ultimately not upheld by the Court, it was a useful attempt.
On March 2, 2015, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice jointly issued the Opinions on Handling Domestic Violence Crime Cases, clarifying the defensive factors and fault liabilities in domestic violence cases:
Where, after a long period of domestic violence, the perpetrator deliberately kills or injures the perpetrator in order to prevent re-exposure to domestic violence in a state of anger or fear, or intentionally kills or injures the perpetrator in order to get rid of domestic violence, and the perpetrator's conduct has a defensive element, and the perpetrator has obvious fault or direct responsibility for the cause of the case, a lenient punishment may be given as appropriate.
Where the perpetrator is deliberately killed because he has suffered serious domestic violence or suffered major physical or mental damage, or if the perpetrator is intentionally killed because he cannot bear long-term domestic violence, the circumstances of the crime are not particularly heinous and the means are not particularly cruel, it may be found that the intentional homicide provided for in article 232 of the Criminal Law is "less serious".
In cases of domestic violence, where there is excessive defense, punishment shall be mitigated or waived in accordance with law; where the perpetrator is clearly at fault or directly responsible for the cause of the case, a lenient punishment may be given as appropriate. Where the close relatives of the murdered perpetrator express forgiveness, full consideration shall be given when sentencing, commuting, or parole.
It can be seen from the above-mentioned judicial interpretation that although the concept of "battered women syndrome" has not yet been explicitly introduced in the mainland judicial system, and the murder and injury of husbands by abused women is still a guilty evaluation, it also takes into account factors such as the spirit and environment of the abused women, and their criminal responsibility is reduced to a certain extent, but its impact is still very limited.
epilogue
Domestic violence incidents are endless, and while we pour out sympathy or care for victims of domestic violence, we should also give more consideration to how to give them more legal remedies under the existing system.
The author suggests that the mainland can appropriately strengthen the role of the "battered women syndrome" factor in the determination of criminal responsibility, and at the same time combine it with other defense grounds, it can make a typed and hierarchical treatment of criminal liability reduction and reduction for victims of domestic violence, and follow up on corresponding supporting systems, such as establishing the evidentiary effect of expert testimony.
The Anti-Domestic Violence Law is the first special anti-domestic violence law in the mainland, and its implementation marks that anti-domestic violence has entered a new stage, but this is not enough to fundamentally change the situation in which domestic violence is difficult to prove. The road to anti-domestic violence is still very long and difficult, and what we can do at the moment is to give practical and rational regulations to the countermeasures of victims of domestic violence.
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