"Article 20" was released, and the first paragraph of Article 12 of the Criminal Law on "legitimate defense" was widely discussed. To mention Article 20, we have to mention the Kunshan Longge case. Let's see how Bai Langtao, the great god of criminal law and law examination, analyzes the case of Brother Long and Article 20.
01. Kunshan Longge case
I believe many people remember the "Kunshan Longge Case" that caused a sensation across the country in 2018. Brother Long drove a BMW, galloping in the downtown area, and Brother Long had a motorway that was not open, so he had to crowd into the bicycle lane of Hemming. Yu Haiming, who did not give way, burned the evil flame in Brother Long's heart, and Brother Long took out a machete from the BMW and came towards Yu Haiming with a fierce momentum.
Yu Haiming tried his best to avoid it in order to save his life, but at this moment, Yu Hailong let go and the knife fell to the ground. In the process of grabbing knives between the two sides, Yu Haiming grabbed the blade first and stabbed Brother Long.
Seeing the situation, Brother Long rushed to the direction of the BMW and tried to open the door. Yu Haiming pursued Brother Long, and the knife slashed into the BMW body. Brother Long ran back when he saw that the situation was not good, and finally collapsed in the green belt.
This thrilling life-and-death confrontation ended with Brother Long falling to the ground and dying. At the same time, public opinion will also push the Haiming anti-killing incident to an unprecedented heat.
Bai Langtao gave technical arguments and explanations. This case is divided into three stages: Brother Long raised his knife and caused damage to Haiming, which was the strategic offensive stage, Yu Haiming raised his knife to counterattack Brother Long, which was the strategic stalemate stage, and Brother Long ran towards the BMW, which was the strategic retreat stage.
In the discussion of the case, although Yu Haiming was a defensive act, if the limit was exceeded, it would be established as excessive defense. The early theories tended to be overly defensive, because Brother Long's strategic retreat from the BMW was in the final stage.
Regarding this case, the judicial interpretation distilled the rules. First, the end of the unlawful infringement includes two elements, namely, the end of the unlawful infringement and the removal of the danger of the unlawful infringement. Second, it is necessary to judge whether the unlawful infringement and danger have ended from the perspective of ordinary people's behavior.
In other words, it cannot be judged from the perspective of hindsight, but should be considered from the perspective of the actor.
In the Kunshan Brother Long case, although Brother Long ran away to the BMW, for Yu Haiming, the danger of this illegal infringement has not been removed, because the other party is likely to take out a weapon from the car or drive into someone, which will continue to pose a threat to Haiming's person.
Therefore, from this point of view, Yu Haiming's actions are justified defense. Even if it is finally found out that Brother Long just wants to escape, then from the perspective of ordinary people's behavior, Yu Haiming still does not belong to excessive defense. Moreover, in the real case, Yu Haiming only slashed the body at the moment of pursuit, and the fatal injury was still in the attack stage.
Che Runhai, a famous lawyer with a master's degree, once said, "Before the Brother Long case, the rules were not clear on how to distinguish between justified defense and excessive defense, and the Brother Long case played a role in activating the legitimate defense system. ”
Here, we recall the first paragraph of Article 20, which states that "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 an ongoing unlawful infringement and causes damage to the wrongdoer, shall be regarded as justified defense and shall not bear criminal responsibility." ”
02. Practical significance
Extracted from the explanation of the great god Bai Langtao, as ordinary people understand the "justifiable defense" clause and watch the movie "Article 20", are we still just a bystander?
Luo Xiang, who went on the road to popularizing the law because of the Brother Long case and the mother humiliation case, said that the key to the definition of legitimate defense lies in "adopting the standard of a flesh-and-blood ordinary person who is substituted for the position of a defender or the standard of a rational person who is high above."
Luo Xiang has participated in many seminars, and there is no shortage of calm analysis experts present. For example, in this case, one person smashed another person's head with a beer bottle, and the person who was smashed smashed back, smashing two bottles in a row. Some people believe that the first blow of the smashed person is legitimate defense, and the second blow is after-the-fact defense.
When danger comes, no one can have God's perspective. Luo Xiang said that the so-called so-called sober analysis is to ignore the involuntary nature of human beings in special situations.
Article 6 of the 2020 Guiding Opinions of the Supreme People's Court, Supreme People's Procuratorate, and Ministry of Public Security on the Lawful Application of the Justified Defense System provides that "as to whether an unlawful offense has begun or ended, a reasonable judgment shall be made in accordance with law based on the circumstances in which the defender is in the defense, and in accordance with the general perception of the public, and the defender must not be demanded." ”
Luo Xiang proposed that "there is nothing profound about the law, it reflects the common feelings of ordinary people." ”
The movie "Article 20" has promoted people's understanding of the law to a certain extent, just like me, I am willing to click on these popular law videos and even teaching courses to explore.
However, life is not an exam after all, and the right choice in the examination room is nothing more than the results represented by numbers.
Life is faced with the test of human nature, self-exploration, and at critical moments, we don't even have reference answers to learn from. Article 20 protects the simple feelings of human beings towards law and justice, and becomes a ray of light in the deep despair of the world's vulnerable people who cannot help themselves.