How should the right of legitimate defense as provided for in paragraph 3 of article 20 of the Criminal Law be understood and applied

Ye Yongchao's intentional homicide case

1. Basic facts of the case

Defendant Ye Yongchao, male, born on July 30, 1976. He was arrested on suspicion of intentional homicide on 21 February 1997 and placed under residential surveillance on 21 May of the same year. The People's Procuratorate of Luqiao District, Taizhou City, Zhejiang Province, filed a public prosecution with the People's Court of Luqiao District, Taizhou City, on the grounds that Ye Yongchao had committed intentional homicide. The Luqiao District People's Court of Taizhou City ascertained through an open trial that in early January 1997, Wang Weiyou and others did not pay for a meal at a restaurant opened by the defendant Ye Yongchao. A few days later, when Wang Weiyou and others passed by Ye's restaurant, Ye demanded that he owe money for food, and Wang Weiyou, believing that it would damage his reputation, gathered Zheng Guowei and others to the restaurant on the evening of the 20th of the same month to make trouble. At about 6 o'clock in the evening of the next day, Wang Weiyou, Zheng Guowei gathered Wang Wenming, Lu Weiguo, Ke Tianpeng and others to make trouble at Ye's hotel, and verbally threatened Ye to treat him to something. Ye pulled out his own sharp knife to fight back, and after stabbing Wang Weiyou in the chest at the door of the store, he rushed out of the door and hugged Wang sideways, and the two scuffled and stabbed each other. Seeing this, Zheng Guowei, who was on the side, picked up a square stool next to him and smashed it at Ye's head, Ye turned around and fought back, stabbed Zheng in the chest, and then continued to scuffle with Wang Weiyou, pressing Wang to the ground and snatching the Oriental knife from Wang's hand. Wang Weiyou and Zheng Guowei died after being sent to the hospital for emergency treatment, and the defendants were also injured in multiple places. According to the forensic examination, Wang Weiyou suffered eight stab wounds all over his body, and died of hemopneumothorax and hemorrhagic shock caused by his left lung split; Zheng Guowei was stabbed in the chest with a sharp weapon, causing penetrating injuries to his right lung, and right atrial appendage laceration, causing cardiac tamponade and hemopneumothorax and died; and Ye Yongchao suffered multiple injuries all over his body, the degree of which was minor. The Luqiao District People's Court of Taizhou City held that when the defendant Ye Yongchao was subjected to unlawful violence such as being slashed by Wang Weiyou with a knife and Zheng Guowei smashed with a stool, he fought back with a sharp knife and stabbed Wang and Zheng to death, and his actions were justified defense and he did not bear criminal responsibility. In accordance with the provisions of Article 12, Paragraph 1, Article 20, Paragraphs 1 and 3 of the Criminal Law of the People's Republic of China, the following judgment was rendered on 14 October 1997: Defendant Ye Yongchao is not guilty. After the first-instance verdict was announced, the Luqiao District People's Procuratorate of Taizhou City lodged a protest with the Intermediate People's Court of Taizhou City, Zhejiang Province, on the grounds that Ye Yongchao subjectively had the intention to fight, objectively prepared to fight, and had a laissez-faire attitude when carrying out his acts, and his actions caused serious consequences such as the deaths of the two people. Ye Yongchao's criminal conduct did not meet the requirements of paragraph 3 of article 20 of the Criminal Law of the People's Republic of China in terms of cause, timing, subjectivity, and limits. After trial, the Taizhou City Intermediate People's Court held that when Ye Yongchao was slashed by others, smashed on a stool and other illegal encroachments that seriously endangered his own safety, he fought back in self-defense, and although two people died, his actions were justified defense and he did not bear criminal responsibility in accordance with the law. In accordance with the provisions of Article 189 (1) of the Criminal Procedure Law of the People's Republic of China, on September 29, 1998, it was ruled as follows: The prosecutorial counter-appeal was rejected and the original judgment was upheld.

Second, the main issues

How should the right of legitimate defense as provided for in paragraph 3 of Article 20 of the Criminal Law be understood and applied?

III. Grounds for the Trial

Article 17 of the Criminal Law of 1979 provides for justifiable defense and excessive defense in an abstract and general manner, especially defining excessive defense as "exceeding the necessary limit and causing undue harm". In 1997, the Criminal Law improved the concept of justifiable defense, further clarified the scope of excessive defense, and added a special paragraph, namely Article 20, Paragraph 3, which stipulates that "a person who takes defensive actions against an ongoing assault, homicide, robbery, rape, kidnapping, or other violent crimes that seriously endanger personal safety, resulting in injury or death to an unlawful offender, shall not be deemed to have acted in excessive defense and shall not bear criminal responsibility." This provision enables law-abiding persons to act in self-defense against violence that seriously endangers their personal safety without being overly concerned about the means and results of their defense. At present, all kinds of violent crimes are relatively rampant in some localities, seriously endangering citizens' personal safety, and also seriously undermining public order, and this new provision in the third paragraph of Article 20 of the Criminal Law is conducive to encouraging the masses of the people to struggle against violent crimes that seriously endanger citizens' personal safety, promoting healthy trends, and deterring crimes. This provision is different from the general justifiable defence, which we call "special defence", and some people call it "unlimited defence". It has the following characteristics: The premise of special defense must be a violent crime that seriously endangers the personal safety of citizens. First of all, the unlawful infringement is aimed at personal safety, that is, the right to life, the right to health, the right to liberty and the sexual rights of citizens, rather than other legitimate rights and interests such as property rights and democratic rights other than the person. This is an important feature that distinguishes special defense from general defense. In the case of the crime of robbery, the object of the infringement is the right to property, and the defence of the act of robbery should not be subject to special defence. Second, the unlawful infringement of personal safety is violent and is a criminal act. This is markedly different from the general defense of "unlawful" sexual assaults. Assault, homicide, robbery, rape and kidnapping are all serious crimes. It should be noted that homicide, robbery, rape and kidnapping should be understood in a broad sense, which refers not only to these four types of criminal acts, but also to criminal acts that use such violent acts as means to commit other crimes, such as robbery of firearms, ammunition and explosives, and abduction and trafficking of women and children by kidnapping. In addition, the use of other violent methods such as arson, explosion, and flooding to infringe on human life and health is also a violent offense. Thirdly, such unlawful violations should reach a certain level of gravity. It must be a serious threat to personal safety, i.e., the hazard is likely to cause serious personal injury or even endanger life. Special defence cannot be applied to minor acts of violence that cause only minor injuries at best. Therefore, attention should be paid to distinguishing the severity of the harm from the "murderous" acts. The "violent act" provided for in this paragraph only refers to the unlawful act of causing harm that seriously endangers the safety of the person, such as the use of a murder weapon to commit violence, which may cause serious injury to a person. According to the provisions of this paragraph, as long as the above conditions are met, there is no legal restriction on the means of defense adopted by the defender and the results caused, and even if the unlawful offender is injured or injured, it is not considered excessive defense in accordance with the law and does not bear criminal responsibility. This is the essential characteristic of special defense that distinguishes it from ordinary defense in terms of defensive consequences. This provision is made in response to the fact that such violent crimes that seriously endanger personal safety are characterized by serious harm and brutal means. In such cases, if the restrictions on defenders are too strict, it will be difficult to achieve the effect of stopping crime and protecting citizens' personal rights from infringement, and it will not be conducive to encouraging the masses of the people to struggle against criminal acts. In this case, it was a reasonable and lawful act for the defendant Ye Yongchao to recover the money from Wang Weiyou, and Wang Weiyou not only did not repay the arrears after the meal, but also picked quarrels and retaliated and provoked trouble after being reasonably recovered, and was responsible for the cause of this case. Although Ye Yongchao prepared a sharp knife to carry with him, he never took the initiative to use it, and he prepared for self-defense when Wang Weiyou and others were unwilling to give up and would make trouble, which was reasonable, not prepared for a fight. Brawl is an illegal act, which is characterized by the intent of the participants in the brawl to unlawfully harm each other, and both parties are unlawful. In this case, Wang Weiyou gathered people to cause trouble at the restaurant opened by Ye Yongchao, and slashed Ye Yongchao twice on his left arm and head with an Oriental knife, which was an act of violence that seriously infringed on the personal safety of others. After Ye Yongchao was slashed twice, he counterattacked with a sharp knife, during which he counterattacked Zheng Guowei, who smashed himself on a stool, and stopped the defensive behavior of counterattacking after taking Wang Weiyou's Oriental knife. This shows that Ye Yongchao was forced to defend himself, and the time and object of his defense were in accordance with the provisions of the law. Ye Yongchao was slightly injured by criminals before and after the start of his defensive acts, and can it be determined that the acts of Wang Weiyou and others were "violent crimes that seriously endanger personal safety"? First, the law does not stipulate that the perpetrators of special defense can only defend themselves if they have been seriously injured, robbed, or raped. Second, the purpose of the defense is precisely to prevent violent crimes such as assault, homicide, robbery, rape, kidnapping, and so on, so even if the defender does not suffer actual injuries at all, it should not affect the establishment of the special defense. In this case, Wang Weiyou and others were armed with oriental knives and had already slashed at the defenders, so if they did not fight back forcefully, how could their criminal acts be stopped? Therefore, the perpetrator's indulgence, or even the exclusion of his wish to stab or stab the other party to death, should not be an obstacle in the application of the provisions of this article. Because Ye Yongchao's defense under the circumstance of serious personal aggression was permitted by law and was just, and although it caused the serious consequences of the death of two people, it still complied with the provisions of the third paragraph of Article 20 of the Criminal Law, so he did not bear criminal responsibility. The judgments and rulings of the courts of first and second instance are correct in applying the provisions of this paragraph in accordance with the principle of giving priority to the old and giving preference to the lesser of the old ones. There is no doubt that the third paragraph of Article 20 of the Criminal Law is a powerful weapon for the masses of the people to struggle against criminal acts that seriously endanger personal safety. However, in actual trial operations, such cases are often complex and cause serious consequences, so it is necessary to pay attention to the causes and consequences of the occurrence of the case, grasp the basic element of the justice of legitimate defense, and exclude situations such as defensive provocation and hypothetical defense, so as to protect the people's conduct in protecting citizens' lawful rights and interests in accordance with the law, and at the same time prevent bad actors from committing crimes under the pretext of defense, so as to reflect the legislative intent of this article of the Criminal Law.

The source of the material is official media/online news, which is only for learning and discussion, such as invasion and deletion.

Transferred from the official account of Case Handling Daquan