Kunshan, Jiangsu Province, the video of cutting people has been widely spread. The voice of the Internet is almost one-sided. It supports white men in black to eliminate evils and evils for the people, and believes that tattooed men deserve it. But according to the past experience, the final court's judgment is often far away from the Internet public opinion. So, is this incident self-defense or over defense? May I express your opinion!
As we all know, in order to prevent the state, the public interest, the person, property and other rights of oneself or others from being infringed by the ongoing illegal activities, the actions taken to stop the infringers belong to self-defense and shall not bear criminal responsibility. How to distinguish between justifiable defense and excessive defense, as well as the exercise conditions of justifiable defense?
1、 The difference between justifiable defense and excessive defense
The components of self-defense: 1. It must be against the illegal infringement. The illegal infringement in self-defense mainly refers to those violations which are harmful to the society, intense and aggressive. 2. Self defense must be aimed at the infringer. "Illegal infringer" refers to the subject of crime in criminal acts. 3. The act of self-defense must be an actual and ongoing violation of the law. 4. The purpose of self-defense must be to protect the legitimate rights and interests of the public and private.
Excessive defense is a kind of crime, and its essence should be harmful to society. The elements of the act of excessive defense: 1. The object of excessive defense must be the perpetrator of the unlawful infringement on the defender. It is the personal right of the infringer, which is the life right and health right protected by law. 2. The act of defense obviously exceeds the limit necessary to stop the illegal infringement and causes significant damage. 3. The subject of excessive defense should be the person with criminal responsibility ability. 4. Over defense when the defender is guilty subjectively. The form of crime of excessive defense may be intentional (including direct intention and indirect intention), or negligent (including negligence and overconfidence). Consideration should be given to the specific circumstances of specific cases.
2、 Conditions for the exercise of self-defense
1. The infringement of 'self-defense' must have 'illegality', such as' emergency avoidance 'and other' legal 'acts for the public interest and the legitimate rights and interests of others. Although the' infringement 'is carried out, the' self-defense 'right should not be exercised. However, reasonable compensation and compensation can be obtained for the personal and property losses caused by the act of "emergency avoidance".
There are three points to be explained here: first, the so-called "illegal infringement" actually occurs and exists; second, the illegal act also includes criminal acts, but it is not required that the "infringement" must reach the level of "crime"; as long as the "illegality" of the infringement can become the object of "self-defense"; Third, in the activities of expropriation and demolition, a considerable part of the expropriation and demolition people have not gone through legal procedures, have not obtained administrative permission, do not have the nature of "for the public interest", and the "illegality" of expropriation and demolition is obvious; After the legal procedure, the administrative permission for expropriation and demolition was obtained. It is indeed for the public interest, but in the expropriation and demolition activities, unidentified social non law enforcement personnel were illegally employed to engage in group beating, personal humiliation, illegal detention, damage to the legitimate property of individuals, and even the brutal enforcement of fishing law enforcement (i.e., "defense Instigation" to be mentioned below) The act of law is also illegal;
2. The implementation of 'self-defense' must have 'immediacy': as mentioned above, the purpose of implementing 'self-defense' is to 'stop' illegal acts, and 'self-defense' is aimed at 'violations in progress'. If the' illegal violations' are at the beginning or at the end of the state, then the defense acts are not targeted, and the so-called defense acts still carried out by the defenders are not legal, such as The defender shall bear the legal responsibility for the consequences of his act because his act of "fighting back" or "retaliation" is not in conformity with the constitutive requirements of "self-defense" because he / she assumes that he / she may be subjected to "illegal infringement" or "temporary emotional excitement" after "no infringement" or "indignation".
3. The implementation of the act of 'self-defense' must be aimed at the perpetrator of 'illegal infringement', that is, the 'pertinence' of 'self-defense': because the defender is' illegally infringed ', the implementation of' self-defense 'to people other than the actual infringer (such as' non violation of law' relatives or other people) does not conform to the constituent elements of 'self-defense', and should bear legal responsibility.
4. The act of defense cannot 'obviously' exceed the act necessary to stop the infringing act, that is, equivalence. This is often the focus of debate about whether 'self-defense' or 'excessive defense' and whether it constitutes a crime, which is difficult for defenders to grasp at the moment. For example, the wrongdoer only insults the defender and makes a slight accumulation, which does not pose a major injury or threat to the defender's personality, physical health or life, while the defender takes the act of killing the aggressor, which obviously exceeds the necessary level, even the defense of the 'ongoing murdering' act stipulated in the third paragraph of Article 20 of the criminal law Be careful. But the second paragraph of Article 20 of the criminal law: "if the self-defense obviously exceeds the necessary limit and causes significant damage, the criminal responsibility shall be borne, but the punishment shall be reduced or exempted.". '.