The popular screening of the movie "Article 20" gave the audience a vivid lesson in the rule of law, and also artistically demonstrated the provisions of Article 20 of the Criminal Law of the mainland on legitimate defense. It is one-sided to argue that justifiable defence is an expatriate and has been formalized since the French Penal Code of 1791. In traditional Chinese legal culture, the concept and practice of justifiable defense have existed for a long time, and its legal system is constantly improving.
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The record of defense can be traced back to the Xia, Shang and Zhou periods, and there is a record of "forgiveness of disasters" in the "Shangshu Shundian", and the explanation of the biography is: "See, pass." Disasters, disasters also. Fourth, slowly. If it is too harmful, it should be pardoned. Shu explained: "If the mistake is harmful, and the original situation is not the deceased, then indulge and pardon it." Later generations have explained this sentence a lot, such as "Historical Records, Five Emperors, Collected Explanations": "Zheng Xuan said, the disaster is also a disaster for people." Mistakes, even if they are harmful, will be forgiven. "In the case of unlawful infringement, in order to avoid real danger, or out of negligence, or out of misfortune, the criminal law is not intentional, and should be pardoned. Kong Anguo of the Western Han Dynasty and Zhu Xi of the Song Dynasty both endorsed this view. These reflect the early hazy perception of justifiable self-defense.
There are also some hexagrams about the idea of defense in "Zhou Yi", such as "Yi Jiegua" has "a gentleman forgives his sins". Yi Shu explained: "Forgiveness means forgiveness, mistakes mean mistakes, forgiveness means forgiveness, and sins are guilty of crimes." If it is too light, it will be forgiven, and if the crime is serious, it will be forgiven, and the righteousness of remission will be relieved. Qing Dynasty scholar Shen Jiaben added a note on this: The word "crime" should be forgiven by those who can be forgiven. That is, although he is suspected of committing a crime, he can be forgiven according to human feelings, that is, "extenuating circumstances". "Yi Mengshang Jiu" said: "Attacking Meng is not good for Kou, and it is beneficial for Yukou." "The "unfavorable" is the behavior of the thieves, and the "advantageous" is the behavior of the defense against the thieves. That is, if it is "beneficial" to attack others, it is a legitimate behavior, and legitimate defense behavior is affirmed and encouraged.
The regulations on the early defense of the mainland in ancient times are also scattered in the "Zhou Li" and other records. "Zhou Li, Local Officials, and Transferors" contains: "Those who kill people and are righteous will not be hated by different countries, and those who are hated will die." It is appropriate to kill people in the name of "righteousness", and this is the stipulation of the law at that time that killing people without committing a crime is justified, and it contains the meaning of defense. "Zhou Li, Qiu Guan, and Pilgrim" contains: "All thieves, soldiers, towns, towns, and their families are not guilty of killing. The annotation of "The Original Case of Yishu" is interpreted as: "If there are thieves in the villages in the army who come to rob and steal their property and family members, they are not guilty of killing at that time." If you don't kill someone, you will be injured by him, so you can't kill him without permission. That is, the innocence of the theft and robbery is clearly justified in self-defense.
"Zuo Biography" recorded a case at that time: "Zheng You sold a wife, and his husband attacked and killed him, and used his wife to do it. The resumption of childbirth made You's resentful. "The gist of it is that Zheng Guoyou raped another person's wife, and the wife's husband killed You. Zheng Guo's ruling son thought that You was to blame and did not allow You's family to take revenge. It can be seen from this that in the pre-Qin period, in order to protect one's own or others' personal rights from ongoing unlawful infringement, it was possible to exercise legitimate defense against the wrongdoer, and unlimited defense was also allowed.
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Although there was no direct legal provision for justifiable defense in ancient China, it was all in the relevant legal decrees. The "Tang Laws and Regulations" is a collection of ancient laws in the mainland, and its brawls between ordinary people have the provision that "those who are the last to be straightened down will be reduced", which was used by the laws and decrees of various dynasties after the Tang Dynasty. "Tang Law: Fighting Lawsuits" (310) "The Theory of Two-phase Assault is Like the Law (Q&A 1)": "Those who are injured by fighting and fighting each other, each according to the severity of the case, and the two arguments are like the law; Those who are straightened down after the start are reduced by two (to the deceased, not reduced). The explanation is that B exercises legitimate defense on the condition that he does not commit a crime against A and is beaten by A without fault. In time, B immediately retaliates when he is beaten, and in terms of the target, he is A who hits someone unreasonably. Subjectively, B was justified only to resist A's beating, and did not have the intention to take the initiative to beat A. This article also stipulates the limit, that is, if B causes the death of A as a result of resistance, the punishment cannot be mitigated, and there is no provision for unlimited right of defence. Even if the opponent uses a murder weapon, the right of unlimited defence cannot be exercised. The "Tang Law Discussion" stipulates: "Those who fight and kill people shall be hanged; Whoever kills with a blade shall be beheaded. And further explained that "those who force themselves with the blade of a man, and those who are injured and killed because of the refusal of the blade shall be in accordance with the law of fighting." It means that even if someone is forced to use a weapon to resist and thus kills or injures someone, he must be hanged for the crime of fighting and homicide. Although it was because of a fight, killing with a weapon and intentional homicide should be punished by beheading. and are forced to be coerced with weapons, and therefore use weapons to resist and thus kill or injure others, they shall be sentenced to death by hanging as the crime of fighting and homicide. Although both were capital punishments, according to the ancient penal system, hanging was lighter than beheading.
The subsequent "Song Criminal Rule" followed the provisions of the "Tang Law and Discussion".
In the Qing Dynasty, there was a special clause for snatching a murder weapon to injure a person, and there was a provision for "commutation" of the seizure of a murder weapon and injuring a person, that is, the sentence of a person who seized a murder weapon and injured a person was reduced by one degree, and he was sentenced to 100 canes and three years' imprisonment. This article is based on the case of the Criminal Department in the 22nd year of Jiaqing (1817) and the case of Shanxi Governor Hengbao and Zhang Xuesan who jointly beat Li Menglin to death. In this case, Zhang Xuesan and Li Menglin beat each other over a dispute, and Zhang Siwa, an accomplice in the case, seized Li Menglin's iron slip and injured Li Menglin. Although Zhang Siwa was an accomplice to the case of complicity in the assault case, because she was holding a murder weapon and injuring others, she could not only be regarded as an accomplice to the case of complicity with 100 rods; If it is directly punished by injuring a person with a murder weapon, it is inconsistent with the facts of the case. Zhang Siwa's murder weapon was taken from Li Menglin's hands, so the Criminal Department sentenced Zhang Siwa to reduce the amount of Zhang Siwa's murder weapon for the crime of injuring people and confiscating the military by one degree, and he was to be sentenced to 100 canes for three years. Zhang Siwa only suffered some flesh and blood and was imprisoned for three years, and was not assigned to serve in the army.
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In ancient times, the mainland stipulated that legitimate defense could be carried out against those who infringed on private spaces such as residences. "Zhou Li, Qiu Guan, and Scholars" said: "All thieves, soldiers, towns, towns, and families are not guilty of killing." The Han "Law of Thieves" contains: "Those who enter people's houses and houses for no reason, get on people's cars and boats, and lead people to break the law, they are not guilty of killing them at that time." It is recorded in the Book of Sui and Criminal Law that during the Northern Qi Dynasty, "thieves attacked the township and entered the people's house, and they were not guilty." This means that if a person trespasses on his or her place of residence without a reason and his personal freedom is violated, he can defend himself.
The provisions of the "Tang Law Discussion" are more detailed, and the 269 articles of "thieves" "enter people's homes without reason at night (Q&A 1)" stipulate: "Those who enter people's homes without reason at night will be punished with forty lashes." The master kills the one when he arrives, don't worry. If it is known that the person kills or injures without aggression, the second class of killing and injury is reduced. "The prerequisite for defence is that the trespasser enters another person's home without any reason after nightfall; The temporal condition of the defense is "Dengshi", that is, at the moment of its entry, it is immediately killed by its master. Subjectively, the owner does not know whether the person who enters the house has the intention of violating it; If the person clearly knows that it is not a violation and kills or injures himself, the punishment is reduced by two degrees in accordance with the crime of fighting and killing. The "Song Criminal Code" follows this provision.
In addition, the "Yuan History: Criminal Law Chronicles" contains: "Those who sneak into people's homes at night and are beaten to death are not counted. The "Da Ming Law" and "Criminal Law No. 1: The Law of Thieves and Thieves" stipulates: "Anyone who enters someone's house at night without reason will be given 80 rods." Whoever kills the Lord's house at the time of his death, do not count. In the "Laws of the Qing Dynasty, Criminal Law, and Thieves", "entering people's homes at night without reason" stipulates: "Anyone who enters someone's house without reason at night will be given eighty rods; Whoever kills the Lord's house at the time of his death, do not count. If he has committed unauthorised murder or injury in connection with his detention, the crime of killing or wounding is reduced to the second degree; and to the dead a hundred rods, and three years. From the above-cited literature, it can be seen that in ancient China, the punishment for entering people's homes at night without reason and exercising self-defense was relatively consistent.
In ancient times, the legitimate defense of the mainland was mainly aimed at acts that seriously infringed on personal rights, such as robbery, theft, murder, rape, and assault, and it was also possible to defend against rape and adultery that had not yet been committed, and there was no excessive defense. "Tang Law Discussion" contains: "Ask: When outsiders come to rape, the master knows the old commission, and he enters and kills at night, so can he not be discussed? Answer: The law is open to listen to the text of killing, and it is a person who prevents aggression. Setting up an order for old knowledge and adultery is ultimately intolerable to the law. But when you enter someone's house at night, it may be difficult to distinguish between reason, and even if you know the offender, you are still a sinner. If he kills and adds to the crime, he will be afraid of his invasion and violence, and he will be allowed to kill at the right time, which is undoubtedly useful. ”
"Da Ming Law" "Volume 19" "Criminal Law II" "Human Life" section "Kill the adulterer" stipulates: "Any wife and concubine who commits adultery with others, and the adulterer and adulteress are obtained in the adulterer's house, and the person who kills them at the time of the adulterer's death." The Qing law inherited the Ming law, and there were many criticisms of this article in later generations, and the late Qing Dynasty jurist Shen Jiaben criticized: "Since then, it has been routine, and those who die unexpectedly in the world do not know how many, and those who die unjustly are also compared to the others." It was not until the end of the Qing Dynasty that this article was repealed.
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Helping others is a traditional virtue, and it is a traditional virtue to be brave in seeing righteousness, and there is a saying in the "Analects for Politics" that "if you don't do what is righteous, you don't have courage". In ancient times, the legitimate defense of the mainland not only provided for the defense of oneself and one's family, but also required in the legal system to have the obligation to defend and rescue others and the public interest. The Qin Dynasty made it clear in its legislation that those who were able to do not assist the victims would be held accountable. Qin's law stipulates: "If there is a thief who kills and injures people, he will not help others, and he will be a second-class player in a hundred steps." It means that if someone kills someone in the street, and a bystander within 100 paces does not rescue him, he will be severely fined two pairs of armor.
The Tang Dynasty's regulations in this regard were more comprehensive and systematic, and the "Law on the Arrest of Persons Beaten, Rape, and Theft (Q&A 1)" in the "Tang Law: Arrest and Death" stipulated: "If anyone is beaten or injured, if he is robbed or raped, even if he is a bystander, he must be arrested and sent to court." It also specifies that if the perpetrator "refuses to defend himself in battle, his captor may be killed; and he that beareth up the battle and walks away empty-handed, let him be killed." To a certain extent, this gives the righteous and courageous the right to unlimited defense, and even if the perpetrator dies, he will not be held criminally responsible. The Tang Dynasty also stipulated the defense between certain related persons, and the "Tang Law and Fighting Lawsuit" "Grandparents Beat Others (Q&A 1)" stipulated: "If grandparents and parents are beaten by others, their children and grandchildren will be beaten, and those who are not injured shall not be counted." Those who are injured will be injured in the third class; to the dead, according to the usual law. And explained in the discussion: "Grandparents and parents are beaten by others, and children and grandchildren should save them." ”
The "Dictionary of Chinese Laws" records such a case: in the second year of Changqing (822) of Tang Muzong, Zhang Lin owed the Yulin official to ride Kang Xian's money and rice, and Kang Xian asked for it, and Zhang Lin beat Kang Xian with drunkenness, causing Kang Xian's breath to be extinct. Kang Xian's son, Kang Maide, was only 14 years old and wanted to save his father, but because Zhang Lin was strong, he did not dare to come close to help, so he found a wooden shovel and struck Zhang Lin on the head, and Zhang Lin died three days later. After the case was discovered, the criminal department said that according to the law, the father was beaten by others, and the son fought back to save his father, so if the perpetrator is beaten to death, he shall be executed according to the usual law and cannot be reduced. However, in this case, Kang Mai was young and could save his father, and he couldn't bear to be executed by the Law Division, so he asked for forgiveness. As a result, Mujong commuted the death penalty by one degree, and the court sentenced Kang to exile.
"Da Ming Law" "Fighting, Fathers and Ancestors Being Beaten" stipulates: "Where grandparents and parents are beaten by others, the children and grandchildren will be rescued and beaten back immediately, not if they are injured, they will not be counted; to the fracture above, reduce the mortal bucket to the third class; to the dead, according to the usual law. If a grandparent or father is killed by a man, and his offspring kills the perpetrator without permission, he shall have sixty rods. Its real-time killers, not to mention. Compared with the Tang Law, the change from "descendants to assault" to "descendants to rescue and return the beating in real time" is more specific than the Tang Law's provisions on the time of defense, and adds a provision that the perpetrator of intentional homicide can be "killed in real time".
The ancient laws of the mainland also stipulate the obligation to help the neighbors. The "Questions and Answers on the Law" of "Qin Law" contains: A thief enters A's house and injures A, and A shouts that there is a thief, but if the neighbors, Lidian, and Wu Chang are not at home, should they be punished? If it is true that they are not at home after examination, the neighbors do not need to be punished, but Ridian and Wu Chang will be punished even if they are not at home. That is, if the neighbor is at home and does not help, he will be punished, and if he is not at home, he will not be punished, and Li Dian and Wu Chang will be punished regardless of whether they are at home or not. This is because the grassroots lieutenants and military chiefs are responsible for the security of the region.
These provisions of the "Qin Law" were absorbed and stipulated in more detail by the Han and Tang Dynasty Law Firms, and the "Tang Law: Arrest and Death" "Neighbors Robbed" stipulated: "Those who are robbed and killed in the neighborhood, and fail to help, shall be given 100 rods; Those who hear and do not save will be reduced by one. Those who cannot be rescued will be immediately sued, and those who do not report will be judged as not being rescued. If the lawsuit is not the rescuer, it will be one year in prison. Thieves, minus two each. "That is, if a neighbor is robbed or killed, and asks for help but does not help, he shall have a hundred rods; Those who hear or see but do not help are to be reduced by one level. Those who are unable to go to the rescue due to their personal strength and the situation at the scene should immediately report to the nearby government, and if the government does not provide assistance, they will be imprisoned for one year. Where a neighbor is stolen and rescued, the punishment is to be reduced by two degrees in accordance with the provisions of the preceding paragraph.
Ancient laws also encouraged people to hunt down fugitives, and Yunmeng Qin Jian's "Questions and Answers on the Law" clearly stated: "Arrest the dead, the dead make money, and catch the money." "If a thief is caught on the run, if the thief carries money with him, the money belongs to the captor. The "Road Pedestrians Arrest Criminals" in the "Tang Law: Arrest of Criminals" stipulates more comprehensively: "If you are unable to control the pursuit of sinners, and sue the road pedestrians, if the pedestrians can help them but do not help, they will be given 80 rods; Those who are unable to help, do not care. He further explained that "those who are unable to help are said to be across rivers, valleys, walls, fences, trenches, fences, etc., and those who cannot be crossed and gallops", that is, people should help when they are able to do so.
(Source: Procuratorate Daily, Green Sea Supplement Author: Xiao Shuang)