Author | The road is late
Recently, a woman who stopped the "bear child" from making noise on the high-speed train was slapped and insulted by her parents, which has aroused renewed attention to the issue of "legitimate defense".
On the evening of May 2, the woman Wang Moumou was riding the high-speed train alone, because the three children in the back row were constantly noisy and kicking the back of the chair, Wang Moumou and her parent Yang Moumou (female) had many quarrels.
According to the video that came out, during the dispute between the two women, the parent Yang Moumou first hit Wang Moumou in the face with the back of his right hand, and the latter got up and returned his hand once, Yang Moumou continued to verbally abuse Wang Moumou, and raised the water bottle to smash it at Wang Moumou, and was persuaded by the passenger.
Unexpectedly, after arriving at the station, it was the parents of the "bear child", namely Yang Moumou and her husband, who called the police. After investigation, the Chengdu police identified the incident as a mutual assault: "According to the first paragraph of Article 43 of the Law of the People's Republic of China on Administrative Punishments for Public Security, the public security organs fined Yang 500 yuan and Wang 200 yuan. ”
What seemed like an everyday dispute caused an uproar in the public sphere. Most netizens seem to be more empathetic to Wang.
"Can you fight back if you are beaten? Where is the line between legitimate defense and mutual fighting? "There is no end to such arguments.
On the evening of May 8, the Ministry of Justice's official Weibo China Law Popularization Incident issued a voice on the "high-speed rail slap incident", saying that there are three questions that need to be clarified: What is mutual beating? How to distinguish between legitimate defense and "mutual fighting"? Can the incident be considered a mutual assault?
Police circular/@成都铁警在线 issued by the Chengdu Railway Public Security Department
The issue of "generalization of mutual fighting", which has always been controversial, resurfaced through this incident.
Another key concept corresponding to this, "legitimate defense", has also been hotly debated again. The attention, definition and sophistication of legitimate defense reflect the public's pursuit of justice and fairness from the level of simple morality, and also show the long-term needs of social growth and civilization progress.
01
If you are beaten, whether you can fight back
If someone beats me, can I fight back?
In traditional or primitive societies, this may not be much dispute, people rely on the simple morality and quack rules that are spontaneously established and observed, and the homomorphic revanchism and egalitarianism of the "-for-tat" style replace the law to maintain people's trust in society. Not to say "fight back", "kill to pay for life" can even be accepted.
The people-oriented modern legal system has been formulated according to the multifaceted needs of social development, and is constantly improving to adapt to the complex status quo of civilized society. But the naïve moral judgments in the depths of people's hearts remain, for example, we still rejoice in the story of "evil is rewarded", and revenge literature such as "Dark Glory" still occupies a place in the field of mass cultural consumption.
"Dark Glory"-style revenge literature makes the public feel pain/"Dark Glory" stills
Therefore, the existence of "legitimate defense" can be understood to some extent as a bridge between traditional morality and modern law. This illegal obstruction is not only the legal rights granted to citizens by modern society, but also a legal weapon to maintain fairness and justice in the entire society.
According to the Mainland Criminal Law, "legitimate defense refers to an act taken to stop 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." Those who cause damage to the wrongful infringer shall not bear criminal responsibility. "It is generally believed that to constitute a legitimate defense, five conditions need to be met: causal condition, time condition, intention condition, object condition, and limit condition.
The Civil Code also stipulates that "no civil liability shall be borne by anyone who causes damage due to legitimate defense".
However, whether defense is lawful and reasonable in specific circumstances often evolves into a question of degree and scale.
In February this year, the Supreme People's Procuratorate issued the "Guiding Opinions on Properly Handling Minor Injury Cases in accordance with the Law", which once revised "legitimate defense": "If a dispute arises over a trivial matter and neither side can restrain itself and a fight occurs, if the party at fault takes action first and the means are obviously excessive, or if one party takes action first and continues to infringe while the other party is trying to avoid conflict, and the counterattack party causes injury to the other party, it shall generally be recognized as legitimate defense." ”
In the high-speed rail incident, according to intuitive video clips, the public almost agrees that the parents of the "bear children" took the initiative to slap the woman, raise the water bottle to hurt and other actions, which are all "radical means".
In the video, parents have raised water bottles to hurt and other actions/video screenshots
Earlier, Professor Luo Xiang also mentioned in a video talking about the incident publicly, "The parents are at fault, and they insult others after the child is accused, and they also start beating people first, and the means are obviously excessive." ”
Both sides were subject to administrative penalties, which came from the judgment of law enforcement agencies. According to all the evidence so far, the Chengdu police have made a distinction between the first and second levels of responsibility, which is based on the law and is not improper.
As a public issue, what is worth noting from this incident is the issue of "generalization of mutual beatings" mentioned in the "article on popularizing the law" of the Ministry of Justice.
As the name implies, "generalization of mutual fighting" is to summarize the complex reality that could not be defined as mutual assault into the field of mutual fighting.
Zheng Xiaojing, director of the Criminal Committee of Beijing Zhongdun Law Firm, emphasized in an interview with Nanfeng Window: "From the perspective of form, 'mutual assault' and 'legitimate defense' both carry out violent acts of violence, and to accurately distinguish between the two, we must adhere to the principle of unity of subjectivity and objectivity, comprehensively consider objective circumstances such as the cause of the case, the fault of both parties, the legitimacy of violence, and the harmfulness, and accurately judge the subjective intention and nature of the perpetrator's behavior." ”
A screenshot of the video posted by Wang on social platforms
In the view of lawyer Zheng Xiaojing, in the "high-speed rail slap" incident, the woman Wang Moumou was defined as "beating each other" rather than "legitimate defense", and the key is "whether (Wang's) second strike is a 'counterattack' or another 'strike'".
"Legitimate defense requires timeliness, and in response to ongoing unlawful infringement, if the time is not timely and the infringement has ended, it cannot be called legitimate defense, but after the fact, also known as "delayed defense", which does not meet the conditions of legitimate defense and is not legitimate defense. Lawyer Zheng believes that in this case, if the parents first hit the woman, after the beating, the woman immediately waved her hand and hit the parents, calling "counterattack", "but because there was a gap of 7 seconds between Wang's second counterattack and beating, it was not legitimate defense." ”
However, the counterattack of "timely, appropriate, without delay, not excessive" seems to be beyond experience and scale for most ordinary people, so a more accurate legal judgment needs to be combined with public order, morality and emotional variables in specific situations.
02
"Law does not need to succumb to lawlessness"
When a woman meets a gangster trying to rape her after work, she pretends to obey, and when the man relaxes her guard, kicks her into a cesspool. The gangster struggled to climb up, and the woman stepped on three feet, resulting in the gangster's death.
Did the woman constitute "legitimate defense"?
This is the famous "dung pit case" in Luo Xiang's mouth, although it is fictional, but with its popular straightforwardness, with this case, Luo Xiang distinguishes between "legitimate defense" and "post-event defense (retaliation and anger)" two concepts: in the eyes of ordinary people, because the danger caused by gangsters has not been lifted, therefore, Luo Xiang believes that the woman's behavior is not only legitimate defense, but also "three feet are not enough, it is best to come back with another brick, not to retaliate and vent anger, but to ensure that 'danger is eliminated'." ”
Luo Xiang talked about the "dung pit case"/video screenshot
It is not difficult to understand that under reasonable circumstances, if a dangerous situation or person is still posing a threat to oneself, the definition of "defense" should be appropriately broadened to leave space and room for people's instinctive sense of self-preservation.
In recent years, well-known hot events such as the "Yu Huan stabbing to death the mother abuser case" in Shandong, the "post-90s female soldier counter-killing drunken man case" in Yunnan, the "Laiyuan anti-murder case" in Hebei, the "Long Ge case" in Kunshan, and the "Zhao Yu case" in Fuzhou have all promoted the public's attention and improvement of the legal application of "legitimate defense".
Compared with the limits and standards of law, people are increasingly concerned with specific actions and measures in moral situations.
On September 3, 2020, the highest judicial organ issued the Guiding Opinions on the Lawful Application of the Legitimate Defense System, emphasizing the protection concept of giving priority to defenders: "For those who meet the conditions for the establishment of legitimate defense, resolutely identify them in accordance with the law, effectively correct the erroneous tendencies of 'who can make trouble is justified' and 'who is killed or injured is justified', and resolutely defend the spirit of the rule of law that 'the law cannot yield to the unlawful'." ”
"Law does not need to submit to wrongdoing", a famous jurisprudence maxim first proposed by the German penal scholar Bernard in 1848, has now become a well-worn spirit of the rule of law.
In a 2020 "Three-person Talks" lecture hosted by Procuratorial Daily and hosted by People's Procuratorial Magazine on the theme of legitimate defense, Chen Xingliang, a liberal arts chair professor at Peking University, explained this sentence, "The original meaning is that a right does not need to submit to the infringement of this right, and behind any right naturally contains a defensive counteraction, including the right to resist and expel violations of that right." ”
Wang Moumou, the beaten woman in the "high-speed rail slap" incident, accepted the fine, but resolutely did not accept the settlement, and has applied for an administrative reconsideration, demanding impartial law enforcement.
Wang Moumou said that he did not accept the settlement/video screenshot
On social media on May 7, the woman posted: "I always feel that there are many people who are the first to maliciously hit people, if you cry and regret and apologize and you can reconcile, then whoever slaps in the future can cry and cry and reconcile without consequences, and I can't convince myself."
Outside the law, reasonably, the dilemma described by the parties is easy to understand.
02
Force field in public places
The reason why this matter can arouse such a wide range of voices, in addition to the right and wrong and priority problems conveyed by the video, there is also a resonance that cannot be ignored, that is, too many people have been harassed and tortured by "bear children" in public places such as high-speed trains and trains.
There is a relatively common public knowledge in jurisprudence, that is, the key protection objects of criminal law are often "socially vulnerable groups".
But what exactly is a "vulnerable group"? In a broad sense, the old, the weak, the sick, the disabled, the pregnant and the poor and unemployed are "socially vulnerable groups" defined by simple cognition and sociology and law, and their essence lies in being in a socially disadvantaged position.
However, the formation of such a disadvantage needs to be judged in the context of the unfavorable environment of "long-term and universal employment and social life."
In the long-term, semi-closed public field of high-speed rail, the strong and weak force fields have produced short-term changes and changes.
Video screenshot of the "high-speed rail slap" incident
The reason why the public has a wide range of empathy for the woman Wang Moumou is not necessarily because she is a "weak person" in terms of numbers, but from the simple emotion, too many people have had the experience of being disturbed by "bear children" in public places such as high-speed trains and trains.
The child's play has a negative impact on others, whether it is "kicking the back of the chair" or mentally noisy, strictly speaking, it is a kind of infringement, who should be asked for by the person responsible for this infringement?
Behind the unbearable behaviour of children is dissatisfaction with their guardians' disregard for the public interest and order.
Lawyer Zheng Xiaojing mentioned, "If the child hurts the woman, according to the principle of self-responsibility, it cannot be considered that the parent intentionally injured the woman, but still determined that the child hurt the woman, the parent should bear the liability for compensation, Article 1188 of the Civil Code stipulates that 'if a person with no or limited capacity for civil conduct causes damage to others, the guardian shall bear tort liability.'" Where guardians fulfill their guardianship duties, their tort liability may be reduced'. ”
Luo Xiang also said in this analysis, "The cause of the case is that the child kicked the back of the chair, which is an inappropriate behavior, young does not mean that there is no right or wrong, and almost every bear child is behind the bear parents." ”
Luo Xiang talks about the "high-speed rail slap" incident/@罗翔说刑法
According to Article 23 of the Civil Code, "the guardians of persons with no or limited capacity for civil conduct are their legal representatives", and the guardians of persons with no or limited capacity for civil conduct are mainly parents, and shall supervise and protect their person, property and other lawful rights and interests, and at the same time play an educational role in educating children to observe public order and maintain public order in public places.
"The life of the law lies in its implementation, and the law is not enough on its own." Lawyer Zheng Xiaojing believes that "it is not so much that the legislation related to legitimate defense is insufficient, but that the application of legal provisions, guiding opinions, and guiding cases is insufficient, and the judicial organs still need to make efforts." When determining legitimate defense, appropriately change the conservative attitude, boldly apply, demonstrate the legislative spirit of 'the law cannot yield to the unlawful', and make a fair judgment. ”
Edit | Xiangyu
Typesetting | Fifi
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