Lawyer Shen Teng: Appropriately relax the criteria for determining legitimate defense, and guide the masses to bravely face unlawful infringement

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Article/Reporter Cao Shanshan

Recently, the "vicious injury incident of a barbecue restaurant in Tangshan" has aroused heated discussion among netizens, and everyone has a lot of concerns. So, how should similar cases be handled in law?

The reporter of "China Youth" interviewed Shen Teng, an outstanding lawyer from all over the country, deputy director of the Social and Legal Affairs Committee of the Central Committee of the China Association for Promoting Democracy, director of the Publicity and Liaison Commendation Committee of the Beijing Lawyers Association, and chief lawyer of Beijing Shuaihe Law Firm.

"China Youth": There are many discussions on how to characterize the violence in Tangshan barbecue restaurants, whether it is applicable to the crime of picking quarrels and provoking trouble, intentional injury, or indirect intentional homicide, there are many opinions. What do you think? What are the criteria for judging these three types of crimes?

Shen Teng: These 9 suspects were involved in more than three kinds of illegal and criminal facts: the first was picking quarrels and provoking trouble, the second was molesting women, and the third was intentional injury. In addition, they were also involved in two aggravating circumstances, one was a gang crime, and the other was that 5 of them had a background in picking quarrels and provoking trouble, intentional injury, and illegal detention, and were repeat offenders.

The key to characterizing this violent incident is how to determine the nature of the gang crime, if these people jointly and deliberately commit acts such as forced trading, intentional injury, illegal detention, extortion, intentional destruction of property, gathering crowds to fight, picking quarrels and provoking trouble, etc. more than three times (Note: the same act is three times, different acts are three), it is possible to be suspected of evil forces gang crimes; If it is accompanied by the opening of casinos, the organization of prostitution, forced prostitution, drug crimes, robbery, robbery, gathering crowds to disturb social order, and gathering crowds to "smash and rob", it is possible to be suspected of "triad" nature crimes.

China Youth: It is worth noting that the Hebei Provincial Public Security Department designated the guangyang branch of the Langfang Municipal Public Security Bureau to have jurisdiction over this case.

Shen Teng: I think there are the following points: First, the background of the case and the background of the people involved in the case are complex, and handling cases in different places can greatly eliminate interference; Second, the case itself or the persons involved in the case have a certain interest in a certain local force, and handling cases in different places can eliminate resistance; Third, handling cases in different places may involve complex issues other than picking quarrels and provoking troubles, such as organized crime committed by criminal syndicates and evil forces, and the "protective umbrella" of criminal syndicates and evil forces. Therefore, off-site handling is conducive to clarifying the cause, background and many factors involved in the crime.

"China Youth": What are the causes and operation laws of the criminal and evil forces?

Shen Teng: The "protective umbrella" is the soil for the formation of criminal and evil forces. In order to reduce operating costs and reduce the risks of various activities, the criminal and evil forces have adopted the method of opening the way with money, pulling out or sending in, and unscrupulously infiltrating the internal departments of state power and seeking various "protective umbrellas" in order to carry out safer and more reliable fraud and plunder on society. Behind every larger organization of criminal syndicates and evil forces is backed by all kinds of "protective umbrellas." There are two main types of personnel: first, law enforcement personnel of the public security, procuratorial, and legal departments, and cadres of party and government organs.

China Youth: Do all injury cases have to be evaluated? How will injury identification affect the facts of the case?

Shen Teng: Personal injury cases generally require injury appraisal, because the punishment of injury cases stipulated by mainland law is linked to the results of minor injuries, minor injuries, and serious injuries (including disability) in the appraisal of injuries, and the injuries to limbs or the damage to the function of the body determine the extent of legal relief for the victim. In this case, there are many facts of suspected violations and crimes, and the injury appraisal may only have a role in the severity of the punishment for one of the facts, and the influence on the overall facts of the crime is insignificant.

China Youth: If "I" am beaten, can I fight back? Is it a fight against each other or a legitimate defense?

Shen Teng: Of course, you can fight back when you are beaten, and the act of fighting back after being beaten is legally called legitimate defense. However, legitimate defense is legally restricted and cannot be done arbitrarily, specifically the following points need to be noted: First, the purpose of fighting back is only to stop the infringement, not to take revenge for personal gain and to vent hatred; Second, legitimate defense must occur during the period when you are infringed, and if you fight back afterwards, the nature will become illegal or even a crime; The third hand should not exceed the necessary limit, you punch me, I kick you a reciprocal act is OK, if you punch me, I stab you a knife is too defensive; Fourth, there are several types of legitimate defence that are not restricted by law, such as the imposition of undue defence against those who are committing murder, homicide, robbery, rape, kidnapping and other violent crimes that seriously endanger personal safety.

In the Tangshan case, the man who beat the person at that time was obviously committing a violent crime against the victim that seriously endangered his personal safety, so whether it was the victim woman or the people at the scene, under the premise of having the ability to protect themselves, they could bravely fight against the thugs and stop the illegal infringement. Even if it causes the death or injury of the wrongdoer, it is not excessive defense and is not criminally responsible.

"Chinese Youth": How to distinguish between fighting and picking quarrels and provoking troubles?

Shen Teng: Fighting and brawling is an act of mutual injury caused by contradictions between the two sides, and both parties deliberately intend to hurt each other. Picking quarrels and provoking trouble is unilaterally committing to innocent people or using excuses to cause trouble, harming the other party's body, or destroying the property of the other party.

China Youth: How should we deal with such unlawful infringements in our lives? How to protect their rights and interests?

Shen Teng: Maintaining one's own safety is divided into two types: self-help and other rescue. Self-help is to use the ability to resist so that the infringement cannot succeed, such as kung fu, can use wisdom to find opportunities to escape, etc.; He rescued by calling the police and seeking help from passers-by to stop the violations. Whether it is self-help or other rescue, I suggest that young people, whether men or women, should improve their awareness of preventing infringement, not interact with illegal people, not go to dangerous places, protect their privacy, exercise more, practice fist and foot kung fu, etc. Most importantly, in the face of unlawful infringement, under the premise of protecting their own safety, retain enough evidence such as photographs, videos, information involved in the case, and the original scene, and report to the police in a timely manner.

What is worth advocating is that we must establish the awareness of the whole people to see righteousness and courage, vigorously promote the spirit of seeing righteousness and courage, and encourage and reward heroic behavior. In addition, I also hope that the legislative and judicial departments will issue relevant regulations and interpretations, appropriately relax the criteria for determining legitimate defense in practice, and guide the masses to face unlawful infringements.

(Mr. Shen Teng has won the honors of the most beautiful grassroots CPPCC member, national outstanding lawyer, Beijing model worker, capital May Day labor medal, beijing role model and so on.) He has undertaken or participated in the defense of hundreds of criminal cases, such as the case of "keeping people under the gun" ten-year-old girl Jin Jin petitioning the Supreme People's Court to save her father, the first accessory to the crime of false vat invoices, the Taiwan telecommunications fraud case, the she Xianglin wife murder case, etc.)

Producer: Pi Jun

Final Judgement: Lin Yuhong

Reviewer: Chen Min, Liu Xiao, Liu Bowen

Editor: Sunny Day (Internship)

Source: China Youth Magazine