The Supreme People's Court The Supreme People's Procuratorate The Ministry of Pu

Release Date: 2020-04-09 Posted by admin

Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security

Notice on Issuing the "Guiding Opinions on the Application of the Legal Defense System in Law"

Higher People’s Courts, People’s Procuratorates, Public Security Departments (Bureaus) of all provinces, autonomous regions, and municipalities directly under the Central Government, Military Courts of the People’s Liberation Army, Military Procuratorates, Xinjiang Uygur Autonomous Region Higher People’s Court Production and Construction Corps Branch, Xinjiang Production and Construction Corps People’s Procuratorate and Public Security Bureau

The "Guiding Opinions of the Ministry of Public Security of the Supreme People's Court and the Supreme People's Procuratorate on the Application of the Legal Defense System in accordance with the Law" is hereby printed and distributed. Please implement it carefully.

Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security

August 28, 2020

Supreme People's Court Supreme People's Procuratorate Ministry of Public Security

Guiding opinions on the application of the legitimate defense system in accordance with the law

Fafa (2020) No. 31

In order to accurately apply the legitimate defense system in accordance with the law, safeguard the citizens’ legitimate defense rights, encourage courage to do what is right, promote social righteousness, and integrate socialist core values into criminal justice work, in accordance with the relevant provisions of the Criminal Law of the People’s Republic of China and the Criminal Procedure Law of the People’s Republic of China. Provisions, combined with the actual work, formulate this opinion.

1. General requirements

1. Grasp the spirit of legislation and handle cases strictly and fairly. Justifiable defense is a right granted to citizens by law. It is necessary to accurately understand and grasp the legal provisions and legislative spirit of legitimate defense, and resolutely identify those that meet the conditions for the establishment of legitimate defense. We must conscientiously prevent the erroneous practices of "who can make trouble," and "whoever is killed or injured," and firmly defend the spirit of the rule of law that "the law cannot make concessions to the law."

2. Based on the specific facts of the case, it is accurately determined in accordance with the law. It is necessary to base on the specific circumstances of the defender's defense, comprehensively consider the overall course of the case, and combine the possible reactions of ordinary people in similar situations, and accurately grasp the time and limit of defense in accordance with the law. It is necessary to fully consider the urgency and nervousness of the defender when facing illegal infringement, and prevent the defender from being judged by calm, rational, objective and accurate standards under normal circumstances afterwards.

3. Adhere to the unity of legal, rational and sentiment, and maintain fairness and justice. When determining whether it constitutes a legitimate defense, whether a defense is excessive, and arbitrating penalties for excessive defense, attention should be paid to finding out the cause and effect, distinguishing the right from the wrong, and ensuring that the case is handled in accordance with the law, reasonable, and compatible with circumstances, and conforms to the people’s The concept of fairness and justice realizes the organic unity of legal and social effects.

4. Accurately grasp the boundaries and prevent improper identification. Regarding illegal and criminal acts that commit illegal infringements in the name of defense, we must resolutely avoid identifying them as justified defense or excessive defense. Although it has a defensive nature, but the defensive behavior obviously exceeds the necessary limit and causes significant damage, it shall be deemed as excessive defense in accordance with the law.

2. Specific application of legitimate defense

5. Accurately grasp the cause and conditions of legitimate defense. The premise of justifiable defense is the existence of illegal infringement. Unlawful infringements include acts that violate the rights of life and health, as well as acts that violate personal freedom, public and private property rights, and include criminal acts as well as illegal acts. Unlawful violations and improper violations should not be limited to violent violations or criminal acts. Defenses can be exercised against unlawful infringements such as illegal restrictions on the personal freedom of others and illegal intrusion into others’ houses. Illegal infringements include both illegal infringements directed against oneself, as well as illegal infringements against the state or public interest or against others. Defenses can be exercised against ongoing illegal and criminal acts that hinder safe driving and endanger public safety, such as pulling the steering wheel and beating the driver . Adults shall persuade and stop the illegal infringements by minors against other minors; if the persuasion and stop are invalid, they can be defended.

6. Accurately grasp the time conditions of legitimate defense. The legitimate defense must be against the ongoing illegal infringement. Where the unlawful infringement has become a real and imminent danger, it shall be deemed that the unlawful infringement has begun; for the unlawful infringement, although it is temporarily suspended or temporarily stopped, but the unlawful infringement still has the realistic possibility of continuing the infringement, it shall be deemed as unlawful infringement In the case of a property crime, although the illegal infringer has obtained the property, but the property can be recovered through chasing, blocking and other measures, it can be regarded as the illegal infringement is still in progress; the illegal infringer has indeed lost the infringement ability or confirmed If the infringement has been abandoned, it shall be deemed that the illegal infringement has ended. Regarding whether the unlawful infringement has started or ended, the defender should be based on the situation in which the defender was defending, and a reasonable judgment should be made in accordance with the general public perception in accordance with the law, and the defender should not be exacted. For defenders who, due to panic, nervousness, etc., have misunderstood whether the illegal infringement has started or ended, they should be dealt with appropriately in accordance with the principle of unity of subjective and objective.

7. Accurately grasp the target conditions of legitimate defense. Justifiable defense must be carried out against the unlawful offender. In the case of multiple persons committing illegal infringements, it can be defended against those who directly commit the illegal infringement, or against those who jointly commit the illegal infringement at the scene. Knowing that the offender is a person with no or limited capacity for criminal responsibility, he shall try to avoid or stop the infringement by other means; if there is no other way to avoid or stop the illegal infringement, or the illegal infringement seriously endangers the personal safety, a counterattack can be carried out.

8. Accurately grasp the intention conditions of legitimate defense. The legitimate defense must be to protect the state, public interest, personal, property and other rights of oneself or others from unlawful infringement. Defensive provocations that deliberately use words, behaviors, etc. to instigate the other party to infringe upon themselves and then counterattack should not be regarded as defensive acts.

9. Accurately distinguish between defensive behavior and mutual fighting. Defensive behavior and fighting with each other are similar in appearance. To accurately distinguish between the two, we must adhere to the principle of unity of subjective and objective, and comprehensively consider the cause of the case, whether there is any fault in the escalation of the conflict, whether to use or prepare to use a weapon, and whether to use it is obviously not equivalent Objective plots such as violence, whether to gather others to participate in fights, etc., to accurately judge the subjective intention and nature of the behavior.

In the event of a dispute over trivial matters, the two parties cannot exercise restraint and trigger a fight. If the party at fault takes the first step and the means is obviously excessive, or one party takes the first step and continues to infringe while the other party is trying to avoid the conflict, the behavior of countering the other party should generally be Determined as a defensive act.

If the two parties have a conflict due to trivial matters, after the conflict is over, one party commits illegal infringement and the other party retaliates, including the use of tools, which should generally be regarded as defensive behavior. The determination of the defense intention of the perpetrator should not be affected only because the perpetrator has prepared for defense in advance.

10. Prevent the abuse of the right of defense as a defense. For a significant and minor illegal infringement, if the perpetrator directly uses a method sufficient to cause serious injury or death to stop it when it can be identified, it shall not be regarded as a defensive act. The unlawful infringement is caused by the actor's gross fault. If the actor deliberately uses other means to avoid the infringement, but still intentionally uses a method sufficient to cause serious injury or death, it shall not be regarded as a defensive act.

Third, the specific application of excessive defense

11. Accurately grasp the conditions for determining excessive defense. According to the second paragraph of Article 20 of the Criminal Law, the determination of excessive defense should meet the two conditions of "obviously exceeding the necessary limit" and "causing significant damage", and neither is indispensable.

12. Accurately determine that "obviously exceeds the necessary limit". Whether the defense "obviously exceeds the necessary limit" should be based on the nature, means, intensity, degree of harm of the unlawful infringement, timing, means, intensity, and damage consequences of the defense, taking into account the comparison of forces between the two parties, and based on the situation in which the defender is defending. Make judgments based on the general cognition of the public. When judging the degree of harm of unlawful infringement, not only the damage that has been caused, but also the imminent danger and realistic possibility of causing further damage must be considered. It should not be demanded that the defender must adopt a counterattack method and intensity that is basically equivalent to the illegal infringement. Through comprehensive consideration, if the defensive behavior is very different from the illegal infringement and is obviously excessive, it should be determined that the defense is clearly beyond the necessary limit.

13. Accurately determine "causing significant damage". "Causing significant damage" refers to causing serious injury or death to an unlawful offender. Causes minor injuries and the following damages are not considered major damages. Although the defensive behavior obviously exceeds the necessary limit but has not caused significant damage, it shall not be deemed as excessive defense.

14. Accurately grasp the penalty of excessive defense. Excessive defense should bear criminal responsibility, but the punishment should be mitigated or exempted. It is necessary to comprehensively consider the circumstances of the case, especially the degree of fault of the illegal infringement, the severity of the illegal infringement, and the fear and tension of the defender in the face of the illegal infringement to ensure that the penalty is appropriate and fair. For infringements that seriously degrade the human dignity of others, seriously violate ethics, or conduct excessive defensive behaviors caused by repeated or long-term illegal infringements, full consideration should be given to the sentencing to ensure that the case can be handled. Legal inspection is in line with the concept of social fairness and justice.

4. Specific application of special defense

15. Accurately understand and grasp the "attack". According to the provisions of the third paragraph of Article 20 of the Criminal Law, the following acts shall be regarded as " assaults ": ( 1 ) Use of lethal weapons, which seriously endangers the personal safety of others; ( 2 ) Failure to use or use lethal weapons, but According to the number of illegal infringements, the location and intensity of the attack, etc., it has indeed seriously endangered the personal safety of others. Although it has not caused actual damage, but has caused serious and imminent danger to personal safety, it can be regarded as an "attack."

16. Accurately understand and grasp "homicide, robbery, rape, kidnapping". The "homicide, robbery, rape, kidnapping" stipulated in the third paragraph of Article 20 of the Criminal Law refers to specific crimes rather than specific charges. Where there are violent crimes such as murder, robbery, rape, kidnapping, etc. that seriously endanger personal safety in the process of illegal infringement, such as robbing guns, ammunition, explosives by violent means, or kidnapping and abducting women or children, special defense may be implemented . If the relevant behavior does not seriously endanger personal safety, general defense laws and regulations shall apply.

17. Accurately understand and grasp "other violent crimes that seriously endanger personal safety". The "other violent crimes that seriously endanger personal safety" as stipulated in the third paragraph of Article 20 of the Criminal Law shall be equivalent to homicide, robbery, rape, and kidnapping, and have an imminent danger of causing serious injury or death and a realistic possible violent crime .

18. Accurately grasp the relationship between general defense and special defense. For defensive behaviors that do not meet the requirements of the special defense cause and cause unlawful infringement of human casualties, if it does not clearly exceed the necessary limit, it should also be regarded as legitimate defense and not criminally liable.

Five, work requirements

19. Do a good job in investigation and evidence collection. When handling legitimate defense cases, public security organs must collect all kinds of evidence related to the case in a timely and comprehensive manner in accordance with the law, so as to lay a factual foundation for the legal and fair handling of the case. Evidence collection work should be timely, and if there are audiovisual materials, electronic data and other evidence materials at the conflict site, they should be retrieved as soon as possible; witnesses in the conflict process should be inquired as soon as possible. Evidence collection work should be comprehensive, and all kinds of evidence that are valuable for proving the facts of the case should be collected in a timely manner according to law, especially the evidence involved in judging whether it is a defensive act, whether it is legitimate or excessive, and the cause and consequence of the case.

20. Handle cases fairly in accordance with the law. It is necessary to comprehensively review the facts and evidence, carefully listen to the opinions of all parties, attach great importance to the defense or defense opinions of the criminal suspect, defendant and their defenders on legitimate defense or over-defense, and conduct timely verification to accurately determine the facts and correctly apply the law. It is necessary to timely disclose the progress of case handling and other work information to respond to social concerns. For cases recognized as legitimate defense in accordance with the law, in accordance with the provisions of the Criminal Procedure Law, timely decisions are made not to file the case, to withdraw the case, not to approve the arrest, not to prosecute, or the defendant is not guilty. For cases of excessive defense, the system of pleading guilty and punishing leniency shall be applied in accordance with the law; for cases where the circumstances of the crime are minor and do not need to be sentenced or exempt from punishment in accordance with the law, the People’s Procuratorate may make a decision not to prosecute. Where an illegal infringer is suspected of committing a crime, it shall be prosecuted in a timely manner. People's courts try first-instance cases involving justifiable defenses that have large social impact or complicated cases, and people's assessors and judges form a collegiate panel to conduct the trial; where social impact is significant, people's assessors and judges form a seven-member collegial panel to conduct the trial.

21. Strengthen the work of interpretation and analysis. It is necessary to focus on the focus of disputes and social concerns in the case, use facts as the basis and the law as the criterion, accurately and meticulously clarify the basis and reasons for case handling, strengthen the interpretation and analysis of legal documents, effectively respond to the concerns of the parties and the society, and make case handling become The public rule of law class for the popularization of the law has achieved the effect of handling one case and educating. We must do our best to resolve contradictions and promote social harmony and stability.

22. Do a good job in propagating the rule of law. It is necessary to conscientiously implement the responsibility system for popularizing the law of "who enforces the law, who popularizes the law", do a good job in the work of explaining the case, and make the handling of legitimate defense cases a process of popularizing the law and promoting the core values of socialism. It is necessary to intensify the publication of guiding cases and typical cases involving legitimate defense, protect the legitimate rights and interests of legitimate defenders and courageous people, promote social righteousness, and at the same time guide the public to resolve trivial disputes in a legal, rational and peaceful manner, and eliminate social hostility. Promote social harmony.

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