The official account of the Supreme People's Procuratorate published an article re-commenting on "Article 20": The law is not cold logic

Poster of the movie "Article 20".

After reading "Article 20", my heart was surging and I couldn't calm down for a long time.

It is not only a movie with a legal theme, it is also a film of life that belongs to everyone.

Of course, Article 20 refers to Article 20 of the Criminal Law, that is, the article on legitimate defense.

This clause is so familiar and yet so unfamiliar.

The content is generally known, but how many of us really understand its essential meaning and its heavy weight. When it falls on a person's head, it is the fate of a person, even the fate of a family, and the most precious things such as reputation, dignity, and freedom.

It affects a person's sense of right and wrong and sense of justice.

Prosecutor Han Ming's son Han Yuchen was sued and wanted to be detained because of his righteous and courageous actions, which caused a lot of trouble for his family and made his parents want to reconcile with him. By the time he was beaten up by the thugs, he didn't dare to fight back. Because he wasn't sure if he would cause trouble for his family if he fought back.

This makes people feel aggrieved, and the reason for this is that the concept of right and wrong is confused and the sense of justice is shaken.

Zhang Guisheng, as a bus driver, saw that female passengers were harassed and bullied, and stepped forward, but was beaten. In the process of mobbing and fighting, he suffered a skull fracture due to counterattacking the illegal assault. Zhang Guisheng's counterattack was divided into several stages to be examined, Han Ming said that at first it was righteous and courageous, then it turned into mutual assault, and finally it became intentional injury.

Zhang Guisheng's family can't swallow this bitter fruit, they want justice, and they can't accept the conclusion given by the judicial organ, which is contrary to their common sense.

Zhang Guisheng's daughter questioned Han Ming, what would you do if you were on the bus?

We habitually apply the law mechanically, and the law becomes cold logic.

Sensations are formally constituted, with results, behaviors, and intentions, and when separated from each other in a static and specific picture, it seems to comply with the provisions of the criminal law.

However, have we seriously thought about the reasons for crime, why does an honest person hit people, he wants to kill people?

There are too many cases, do we still have the patience to listen to the reasons for the crime, find out the reasons for the crime, understand the unhappiness of the parties, and have a sympathy for understanding.

Do you think that's all right?

This is a question issued by prosecutor Lu Lingling.

At that time, she and Han Ming were arguing about what should be done in Wang Yongqiang's case.

Han Ming cited a lot of cases, and it turned out that they were all done like this.

Yes, this was the case, and we still have to do it this way? Is it necessarily right to do so? Have we returned to the essence of the law to understand the essence of the law?

We now know that Article 20 of the Criminal Law was once called a sleeping clause, which means that the meaning of the law has been expressed, but we dare not use it.

There is the issue of a constant shift in the concept of justice.

In other words, the concept of legislation has changed, and the concept of justice may not be able to be changed in one step, and there may be application bias, artificially setting conditions and thresholds, thus deviating from the spirit of legislation.

Is this question just a question of Article 20 of the Criminal Law, and are there any other articles that are sleeping?

If our previous concept has not changed, and there is a bias in our previous application of the law, then the cases handled under the guidance of such backward judicial concepts will inevitably be biased.

If we follow these cases to guide our current case-handling, our philosophy will only stand still, make mistakes again and again, continue to let the law sleep, and let justice not be served.

In addition, there is still a lag in the law, and some legislation is no problem at the beginning of the formulation, but with the development of society, the new situation may no longer apply, and if it is still mechanically understood, it is bound to deviate from the trend of the development of the times and be out of touch with the times.

Before these laws are revised, we also need to make new interpretations in light of the legal framework and the needs of the times, so as to better meet the needs of the times.

For these situations, we can't copy the old yellow calendar, what we can sue in the past can also be sued today, and what can be judged in the past can also be judged today.

In this regard, judges should have a certain degree of critical thinking, should dynamically and dialectically understand the essence of the law and the changes of the times, and constantly use common sense and common sense to correct our judicial philosophy, so as to meet the public's ever-increasing demands for the rule of law.

At the same time, we also have to solve the problem of why we don't dare to try, we dare not activate the sleeping clause.

It is not easy to make mistakes in following conventions, or even if you make mistakes, the responsibility is not great, because after all, there is a basis and reference, and everyone is wrong if you want to make mistakes, not personal responsibility.

But if you come to a different conclusion than you have ever come to before, not only will you be questioned, but you will also take all the risks, and that will take a lot of courage.

We should cherish and protect this kind of judicial courage, and not let them also suffer injustice, so as to protect this kind of judicial creativity and judicial vitality, and have the motivation to promote the progress of judicial concepts. While solving the problem of external machinery enforcement, it is also necessary to solve the problem of internal machinery enforcement.

The law cannot bow to lawlessness

This is a line that appears many times in the movie, and it is also the law enforcement concept of the procuratorate.

In fact, this is also a simple concept of justice, which is the core essence of the concept of legitimate defense.

Why can't you fight back when you are beaten, what's wrong with acting bravely, being repeatedly tortured and bullied, and facing major personal safety, why can't you bravely resist?

Is it true that whoever is seriously injured is justified, and whoever can make trouble is justified?

Justice should have its own confidence.

Although these people who fight back are not strong, they may not have an advantage in terms of body and momentum, and they usually don't like to fight, or even know how to fight, so they haven't fought.

They still have an awe-inspiring air because they are convinced that they are on the right side, on the moral side.

High school student Han Yuchen saw the bullied classmates in the toilet, he didn't hide from it, he dared to hand the clothes to the bullied classmates, although the bullied classmates were many and domineering, but he also dared to confront them head-on. He's a man. When such a child grows up, he will be more able to become a person who does not hide from things, is not afraid of things, and a more responsible person, isn't this exactly what we expect?

Zhang Guisheng, the bus driver, saw that the female passengers were bullied, but he didn't pretend not to see it, and he still dared to take action when he was outnumbered by age and physical fitness, and gave a demonstration to the people on the entire bus. In the eyes of passengers, in the eyes of his wife and daughter, he is a hero. If there is no such person to stand up, will this girl and a whole carload of people see righteousness?

Wang Yongqiang, who borrowed loan sharks in order to treat his daughter's illness, was repeatedly tortured in the face of the repeated rape of his wife by a bully-like creditor, and he could not bear to pounce on the creditor Liu Wenjing.

Those who deny legitimate defence on the grounds of results, limits, urgency, and the end of the violation are excessively harsh.

It is a kind of rational calmness and clarity in hindsight to judge the fear and panic at that time, out of the special situation of the crime scene, and to understand human nature and human predicament with cold legal logic.

It is to treat the whole case in segments and slices, separating the causes and natural evolution process of the case, so that the case is established in part but not in the whole.

This kind of judgment that only looks at the part and ignores the whole and ignores the specific situation at that time will inevitably distort the merits and deviate from common sense and common sense.

As a result, a wrong demonstration and guidance are generated, so that children can learn to only be beaten and dare not resist, or try to hide when they see something, so as to avoid trouble as much as possible.

But not really. If you don't want to get into trouble, trouble won't come to you?

Just like Wang Yongqiang's family, disaster fell from the sky, and he couldn't hide if he wanted to.

You see someone being bullied, and you walk away. When you are bullied, will others stand up?

No one cares if someone is bullied on the bus, so what about you being bullied, and your family being bullied?

People come to your house to bully you, what if you can't hide?

Is it okay to have a good conscience?

The world never gets better out of the world.

The law cannot yield to lawlessness, and what is advocated is a kind of courage, a kind of moral force that dares to take responsibility, a kind of awe-inspiring atmosphere, and a kind of social righteousness.

When people are protecting themselves and others, we can't be too harsh.

Excessive defence may only be constituted if it manifestly exceeds the necessary limit and at the same time causes serious harm.

Moreover, when stopping violent crimes that seriously endanger the person, such as assault, homicide, robbery, rape, kidnapping, etc., the act of self-defense, even if it causes unlawful infringement or death, is not considered excessive defense and does not need to bear criminal responsibility.

In judging the cause, time, object, result, limit, and other conditions, we should adhere to the principle of consistency between subjectivity and objectivity, put ourselves in the defender's shoes, and consider the specific situation of the defender.

It is not possible to apply legal provisions, consequentialism, or conventionality in accordance with the inertia of mechanical law enforcement; nor can it be conservative or vague to make a relative non-prosecution or doubtful non-prosecution when it is clear that it should be legally not prosecuted.

If our attitude of supporting the law is not clear and clear, the law will not dare to resolutely say no to lawlessness, and we may make concessions and compromises to lawlessness, so that the purpose of lawlessness will succeed and justice will not be promoted.

Courage is actually very scarce and fragile.

Courage often does not come from rational judgment and careful consideration.

It comes from habit, sometimes even impulsive, conditioning.

This habit comes from the creation and rendering of the family, school and social atmosphere, and it is a long process.

If his father is a man of courage and courage, and he is also recognized by society, then he may follow suit, because he also wants to be a hero.

But if his father had been sentenced for acting for justice and could not be redressed, he would have been hesitant to act for justice. Colleagues at his father's company, relatives and friends, passengers with knowledge, members of the public who have heard about it, and relatives and friends of these people spread the idea through their social networks that they should not be nosy.

Why is it so difficult to awaken the justifiable defense clause, because it is not something that can be solved by one or two cases, it needs thousands of cases, and it needs to make the concept of justifiable defense a consensus, deeply rooted in the hearts of the people, a social habit, and then further become everyone's subconscious and intuitive reaction.

For the majority of people to dare to take action and manage affairs, the judiciary must unswervingly and consistently support legitimate defense and courageous action. In this way, individual courage can become a habit, and habit can form an atmosphere, so that everyone shouts and beats for wrongdoing, and there may be a price to pay for reaching out, and it is impossible to coerce any benefits through the price. The society can reap the dividends of harmony, that is, to reduce the cost of social governance and improve the output and efficiency of legitimate behavior.

If the law does not let the law take a single step against the lawless, it will be difficult for the lawless to move an inch.

There is no market for lawlessness, and justice can prevail.

We are not dealing with cases, but other people's lives

This line appears twice in the movie and has now become a consensus in the legal community.

The so-called mechanical law enforcement is often also brought about by the professional fatigue of assembly line operations.

If you handle a lot of cases, you will become numb, and you will be almost fine, so why fight?

Many people think that Lu Lingling is too competitive, and she has not prosecuted after two withdrawals, and she has to find a knife and a witness. Why is it so troublesome when there is a surveillance video? Why do you want to make everyone unhappy, because the case cannot be completed for a long time.

Because Lu Lingling did not simply treat it as a case, she knew that this case would affect Wang Yongqiang's life and his family's life.

And this case is not so simple, it is not the same, and it is not easy to conclude that the prosecution can be indicted.

Why did she care about the knife?

Because if the knife really existed, it meant that Wang Yongqiang's defense was valid, and the creditor Liu Wenjing not only threatened to hack him to death, but it was really possible to hack him to death, because there was really a knife in the car.

In addition, Liu Wenjing's consistent abuse of Wang Yongqiang and rape of Wang Yongqiang's wife shows the consistency of his violence. Especially when Wang Yongqiang dared to resist and pounce on himself, Liu Wenjing was already annoyed and angry.

Wang Yongqiang has been bullied by Liu Wenjing and is afraid, and he is very sure of the violence that Liu Wenjing is about to carry out, if he is killed, his wife will be ravaged more unscrupulously. Under the effect of panic and panic, Wang Yongqiang used the scissors at home to stab Liu Wenjing several times, causing Liu Wenjing to die a few days after being sent to the hospital.

If you want to say that there are so many knives that have no emotions at all, no one will believe it.

But these emotions are mixed with Liu Wenjing's fear of hacking himself to death, which is a subjective state of mind that is mixed and intertwined with tension, fear, and venting.

Although there were many wounds, none of them were deep, and there were no fatal injuries, which shows that the behavior was not completely uncontrolled.

It is impossible to ask Wang Yongqiang to be harsh in defending against a man who has repeatedly raped his wife, and to have no hatred at all.

It is impossible for us to criticize Wang Yongqiang for stabbing too many knives, and who can be sure of how many stabs to use scissors to ensure that the other party has no ability to resist at all.

Don't forget that the other party locked Wang Yongqiang directly on the iron chain, which requires a lot of violence.

It was precisely this knife that was so critical that Liu Wenjing's family transferred and abandoned it.

In order to find this knife, it is necessary to find witnesses who have seen the existence of this knife.

At the same time, Wang Yongqiang's wife must be found to confirm the violence and rape that have been going on.

Only by confirming these can we prove the cause and urgency of the defense, and let the chain of evidence of justifiable defense be connected.

And Liu Wenjing's family is doing everything possible to destroy the evidence, or reverse black and white.

Many of the film's plots reflect this battle for evidence.

Why did Han Ming and Lu Lingling fight desperately with each other for evidence?

In order to return Wang Yongqiang's innocence, and to return Wang Yongqiang's family to an innocent life.

Where is this case, this is someone else's life.

As soon as you let go easily, you can sue and judge according to the usual practice, and you can cope with errands, but Wang Yongqiang's family will be buried.

Why did Wang Yongqiang's wife jump off the building, because she couldn't stand the children forcing her to tamper with the evidence, so she killed her husband and ruined the innocence of the family. She would rather die than keep her and her family's innocence, even if she ignores her minor daughter.

Is innocence important? Sometimes it's more important than life.

Because it is right and wrong, it is justice, and it is the human heart.

Why is it said that we are not handling cases, but other people's lives, because it is related to right and wrong, justice and people's hearts.

It is not a task, it is not a job, it is someone else's life, we must put other people's lives in our own hands to weigh and weigh, we must use our criminal prosecution power very carefully.

Only good will can convey goodwill, and bad faith can only be exchanged for bad faith.

Respect and understanding are both two-way, and only when the judiciary respects and believes in the law from the bottom of their hearts, handles cases in accordance with the law, and enforces the law impartially despite all difficulties and dangers, can the public believe in the law, believe in the law, and believe that the spirit of the rule of law can be realized with certainty.

The law is not cold logic, the law is justice and freedom in the hearts of the people.

(The author is Liu Zhe, deputy director of the First Procuratorate Department of the Beijing Municipal People's Procuratorate and third-level senior prosecutor)