Maintain self-defence to harm a blame intentionally
Self-defence does not establish crime, it is the legal provision of widely known. But, this does not mean a judiciary can the regulation of accurate and applicable criminal law. Look in the article, our country judiciary maintains self-defence the status to harm a blame intentionally quite general, basically behave among them for two kinds of case.
(one) will typical self-defence is maintained for mutual affray, maintain then to harm a blame intentionally
The first kind (the most typical) case is: Second and armour are based on some kind of reason happening to quarrel, second carries out force to armour first, armour strike back makes second into flesh wound. To such case, the judiciary basically holds armour and second is mutual affray, the action that holds shell then makes intended harm crime. For example, on April 5, 2012 9 when make, tao Mou of the accused person places booth to sell drug in some market, after Xu Mou tries drug to its medicine booth, take a medicine to did not pay to leave, when Tao Mou overtakes Xu Mou to be about to get back medicines and chemical reagents, both sides produces drag tussle, some wheat that wear ear destroys contented of person of the accused of Xu Mou general, one fist is in Tao Mou criterion Xu Mou is facial send its to fall down get hurt. The Later Zhou Dynasty surrounds masses to call the police, tao Mou is seized in the spot. Via appraisal of legal medical expert, xu Mou gets flesh wound. Some court thinks, tao Mou of the accused person harms other body intentionally, send person flesh wound, its behavior already made intended harm crime, guilty fact is clear, evidence is really sufficient, ought to investigate its criminal duty. "This case is on origin, xu Mou of the injured party is unpaid and the medicines and chemical reagents that takes away Tao Mou of the accused person, and Tao Mou of the accused person is beaten up in conflict process, xu Mou of the injured party has apparent fault to contradictory become acute, when measurement of penalty can punish lightly to Tao Mou of the accused person. This case is in cognizance process, tao Mou of the accused person and the injured party reach civil compensation agreement, compensate for the injured party by the agreement total pecuniary loss, but take into consideration the circumstances is punished lightly. Tao Mou of the accused person admits his guilt of one's own accord, take into consideration the circumstances is punished lightly. "Then, sentence control of Tao Mou of the accused person one year. Look in the article, similar such court decision, not appropriate. Tao Mou's behavior is not intended harm, however self-defence, reason is as follows.
One of, xu Mou's behavior belongs to illegal enroach on, do not have doubt to this. On one hand, the illegal enroach on that serves as defensive object not penal of be confined to is illegal enroach on, to disobeying " public security management sanctions a method " illegal enroach on, also can undertake self-defence, this is our country criminal law since theory is long-term say [the trend hints 1] . Judgment finds out what used " both sides to produce drag tussle " partly to state in the fact, aim to explain both belongs to mutual affray it seems that. But, on one hand, paying to take medicine to leave itself is illegal; On the other hand, judgment proves part and part of argue of measurement of penalty in the fact, show Xu Mou to carry out force to Tao Mou in conflict process clearly. Since such, ought to allow Tao Mou to execute self-defence to illegal enroach on of Xu Mou. If deny Tao Mou to right now self-defence counterpoises, mean contented to some can escape only or bear Xu Mou to continue to beat up. However, the world does not have such truth. Getting to frame-up concession, this is the thing of perfectly justified. So, tao Mou strikes back to Xu Mou, also be the thing of perfectly justified. Tao Mou why of the blame have? [the trend hints 2]
Secondly, defensive action is the behaviour that enough is caused or has caused illegal trespasser harm and even death of course, do not need to make through self-defence its become illegal block otherwise however main content [the trend hints 3] . For example, when the injured party encounters thief, cry suddenly after " has wicked " , thief runs away, anybody won't think the behavior of the injured party is suspected of crime, need the provision of applicable self-defence far from consequently. Be like again, when second uses wooden club to hit nail, armour seizes the behavior of next wooden clubs, do not accord with any crime originally make important document, the action that does not need to deny armour through self-defence likewise makes crime. Of Yi Yan, defensive action and harm and even homicide behavior are identical on outer watch, otherwise, self-defence becomes illegal block impossibly however main content. Since such, the judiciary cannot think, always cause illegal trespasser to harm, not be self-defence. [the trend hints 4]
Thirdly, cognizance crime ought to from arrive objectively subjective, from violate duty. When the condition that goes up objectively to accord with self-defence completely when the behavior of armour, need bother about armour to whether have the meaning of mutual affray at that time far from, also do not need bother about armour to whether have defensive meaning at that time. The author is a result the worthless person that talk, do not admit subjective just when change element, consequently legitimate holds water defensively not to have defensive consciousness in order to go to be premise for the person. Indeed, this one viewpoint of the author gets most person hard probably hold with, but although remove one condition,legitimate establishs need defensively to have defensive consciousness, complete also quite can affirmative Tao Mou has defensive consciousness. Because,this is, defensive consciousness is necessary the defensive consciousness in saying is not alleged and defensive understanding and defensive volition is unified (generally speaking, defensive understanding, it is to show defensive person realises illegal enroach on is undertaking; Defensive volition, it is to show defensive person stems from protection country, public interest, oneself or the person of other, belongings and other right avoid the end that gets the illegal inroad that having) , however only should defensive understanding can be maintained to have defensive consciousness. I.e. , the deed that realizes oneself for the person all right is as opposite as the illegal inroad that having when fighting, should think to have defensive consciousness. Understand so, be helpful for will be based on the excited, anger defensive action that have to maintain for self-defence. The worthless person that talk all takes the action of Germany, Japan this kind of viewpoint. Going up in the exemple, tao Mou realises Xu Zheng is having illegal inroad of course, the deed that realizes oneself is as illegal as what undertaking enroach on is fought relatively. So, cannot deny Tao Mou to have defensive consciousness. Again to say the least, although think Tao Mou is when the illegal enroach on that realises the other side, have the consciousness that atttacks the other side at the same time, also should be sure its have defensive consciousness. Because,this is, defensive consciousness and attack consciousness coexist completely possibly, defend consciousness is not offsetted by attack consciousness, reason cannot have attack consciousness to deny its to have defensive consciousness because of behavior person. [the trend hints 5] anyhow, tao Mou had the subjective essential factor of self-defence.
Its 4, no matter whether ask to defend consciousness, cannot will go up exemple maintain for mutual affray. Change character, the judiciary cannot maintain defensive action and defensive consciousness for affray behavior and affray consciousness. Going up in the exemple, xu Mou starts work first beat up Tao Mou, and Xu Mou still is in at that time the spot, when Tao Mou is based on Xu Mou to having illegal inroad and strike back to Xu Mou, the judiciary maintains Tao Mou to have affray behavior and affray consciousness only by what, and are there defensive action and defensive consciousness? Like harming behavior as defending behavior was included of course, defensive consciousness includes the consciousness that hurts opposite party possibly of course. But, in this kind of circumstance, the behavior that defends the person is not to realise his can produce " to endanger result " of the society, the result that realises him behavior is caused however is place of protective law beneficial is necessary. Change character, this kind harms the consciousness of the other side, it is to check the consciousness of illegal enroach on, the consciousness of the intended harm with general and rather than.
Its 5, although judiciary legitimate establishs need defense consciousness defensively, and in distinguish hard behavior person at that time is stem from affray consciousness or when defensive consciousness, also should maintain for the case with unidentified fact. Below this kind of case, the principle of the accused must be helpful for when applicable impeach, cannot hold Tao Mou's action consequently to harm a blame intentionally. [the trend hints 6]
The 2nd kind of case is, when second quarrels with armour happening, second tries to carry out force to armour, armour warns second to say: "You do not want to start work, otherwise I am impolite to you! "But second still starts work first carry out force to armour, armour strikes back cause second flesh wound. Such case, basically be maintained to be mutual affray by the judiciary model intended harm blame. For example, second of Huang Mou armour, Huang Mou collects planted flood land photograph adjacent. In April 2010, huang Mou second grows the picket that put stone in flood land ground in order to make clear group bank, be unplugged by Huang Mou armour after. On April 29, 2010 morning 7 when make, because land bank and generation of stone stake issue quarrel and second of Huang Mou armour, Huang Mou is ripped each other catch, be pulled open by other. Huang Mou second takes shovel to shovel earth in flood land ground in order to clear group bank. 9 when make, huang Mou second fizzles out to the side of highway wash his hands before some armour door. Huang Mou armour shows with the hand second says a Huang Mou: "Your shameless, qing Dynasty of bank of land of your Qing Dynasty came up to my head. "Huang Mou second also shows with the hand armour says a Huang Mou: "Your shameless. "Next two people use a hand mutual half volley with push, hand of Huang Mou armour scratchs head of Huang Mou second, cause occurrence score of right forehead of Huang Mou second. Huang Mou second says: "You again dance is caught, I am one scoop. "Huang Mou armour one palm pushs Huang Mou second ditch, huang Mou second uses shovel (about 1 meter long) the waist that is hit in Huang Mou armour. Huang Mou second from the pick up on the ground one brick prepares to hit Huang Mou nail, proper motion throws away after. The court thinks, "Second of Huang Mou of the accused person uses shovel beat up body of private prosecution person, be in subjective on those who have retaliation to injure private prosecution person is intended, going up objectively carry out the behavior that hits private prosecution person and cause private prosecution person right the 10th costal fracture achieves flesh wound, its behavior offended our country " criminal law " the 234th regulation, make intended harm crime, should handle battle of 3 years of the following set term of imprisonments, arrest or control. "[18] looks in the article, such court decision also is wrong.
The analysis that case of intended to Tao Mou harm states before applies to this case completely. Huang Mou armour and Huang Mou second foregoing brawl, do not belong to the illegal enroach on that needs defence. But the head that Huang Mou armour scratchs Huang Mou second, and the action that postpones Huang Mou second person ditch, belong to illegal enroach on, huang Mou second is OK of course and defensive. This one truth comes for easy to read and understand. The article wants to show the following particularly here: The warning of second of ① Huang Mou is completely proper. When someone is about to carry out illegal enroach on, anybody has authority to issue a warning. This kind of admonitory content may be illegal trespasser can get already legal sanction, also may be illegal trespasser can be defended, may be illegal trespasser can get even judgement. The warning of second of ② Huang Mou is not equal to him to have the consciousness of mutual affray, more do not attribute defence provocative, also do not belong to retaliation likewise, carry out illegal enroach on to remind Huang Mou armour does not continue however. Of simple character, the warning of Huang Mou second makes we can be sure its have defensive consciousness, because Huang Mou second is in,realising the other side right now is to having illegal inroad. The court decision of this case considered private prosecution person and contradiction of existence of the accused person mainly, and the fact that did not take private prosecution person seriously to carry out illegal enroach on to the accused person first, conclude " of the accused person is in subjective on the intended " that has retaliation to injure private prosecution person, hold the action of Huang Mou second then to harm a blame intentionally. This is apparent and undeserved. [the trend hints 7] the admonitory content of second of ③ Huang Mou more do not affect its objective behavior belongs to self-defence. From look in fact, huang Mou second exercises restraint apparently to defending behavior also has. On one hand, shovel the waist that just is hit in Huang Mou armour, and was not beaten up repeatedly; On the other hand, discover Huang Mou when him when armour did not continue to carry out illegal enroach on, threw away by oneself the brick of pick up. Fact of this be related also can explain, huang Mou second is next checking is controlled in defensive consciousness the illegal enroach on of Huang Mou armour. Since such, the action that ought to hold Huang Mou second belongs to self-defence.
The 3rd kind of case is, second quarrels with armour happening or contradict, proper preparation was made after armour is informed second to will carry out illegal enroach on to oneself, when second carries out enroach on to armour, armour strikes back cause second flesh wound. Such case, be maintained to be mutual affray by the judiciary mostly model intended harm blame. For example, on December 25, 2008 morning, because the Dai Yi of bagatelle and place produces quarrel,third of second of Yuan of provincial peasant worker worker, Yuan, Yuan Ding is in in the job, each other is ill-affected. That day afternoon, dai Yi makes an appointment with Dai Jia, be versed in to the farmer the dormitory is provoked in the evening, cause brawl again, be persuaded by the person such as Zheng Jia. Zheng Jia reminds, 2 people still may come make trouble. Then, third of the Yuan Jia of chummery, Yuan Yi, Yuan, Yuan Ding, Yuan Wu, Yuan Ji in all 6 people discuss the way to deal with a situation, prepared a few empty bottle, indoor still have the article such as a foreign shovel, made certain defensive division of labor. The Dai Jia that is persuaded, of one mind that wear second should retaliate the third of Yuan Yi, Yuan, person such as Yuan Ding, dai Jia calls call up its friend to wear third, Dai Ding. Dai Jia carries watermelon sword, dai Yi, Dai Bingdeng takes one cut steel tube to lay a person to laborer dormitory again each. After Dai Jia, Dai Yi enters room, dai Jia holds a knife to chop Xiang Yuanding, just Yuan Fang Li of preparation strikes back namely, some uses foreign shovel, some to use fist and Dai square tussle with beer bottle, some, yuan just closes dormitory door, wear what had not entered room third, Dai Ding to lie between outside house. In tussle, the lethal weapon of Dai Jia, Dai Yi is captured by the person such as Yuan Jia, yuan Jia is chopped with the watermelon knife that carry off to the other side, the window jumps to escape after Dai Yi gets hurt outside house, dai Jia is Koed indoors. Next Yuan just calls the police, public security personnel arrives the spot, send a hospital cure Dai Jia, Dai Yi, hind classics appraisal, the flesh wound that wear nail, Dai Yi is weighed. Public security mechanism thinks Yuan just is suspected of gathering a crowd affray blame, procuratorial work mechanism cites " criminal law " the 292nd the 2nd, sue with harming a blame intentionally, square behavior forms cognizance forensic Yuan to harm a blame intentionally, have fault with the injured party at the same time for, sentence Yuan Jia set term of imprisonment 3 years, the 5 people such as Yuan Yi set term of imprisonment one year. [19] the article thinks, such court decision is not proper.
The analysis in front, enough explains the behavior of column of this case Wu Mou establishs self-defence, is not mutual affray. Because of Wu Mou some starts work first to Wu Mou the wife of column carries out force, this is a kind of illegal enroach on, and did not stop illegal enroach on, the legal authority of Wu Mou column to protect a wife beneficial, OK of course such-and-such to fierce executive defense. The article is conjectural, the judiciary maintains the behavior of Wu Mou column to make crime, among them a main reason is, the father existence with Wu Mou column and such-and-such fierce is contradictory, hold the action of 2 people then for mutual affray. But, such cognizance and not appropriate. When both sides has contradiction, do not mean any one party to exist illegal enroach on. More important is, when both sides has contradiction, when producing violent conflict, meaning both sides is mutual affray necessarily. When both sides has contradiction, just kill among them another, establish intended homicide. Be based on same argument, when harm of the one party when both sides has contradiction perhaps is opposite another another times to carry out rough stuff, belong to illegal enroach on, other one party can undertake self-defence of course. [the trend hints 8] so, the behavior of Wu Mou column is self-defence, and do not hold water to harm a blame intentionally.
In front enumerated a few kinds of case, be in old China and abroad to be able to be maintained to be self-defence, and won't maintain for mutual affray. Why can you appear such maintain self-defence the appearance that is blame of mutual affray intended harm? From apparently look, because be to the defensive expression of violence,bring to bear on to the other side violence, also can behave to the defense of harm to hurt opposite party, be like, the defense to violence, harm is like affray of inphase each other on the appearance, and unlike is right rob, the defense of the rape is maintained easily in that way. Nevertheless, contact the analysis in front, we still can find a few real reasons.
The first, personnel of a few judicatory is used to thinking, when the citizen is faced with illegal enroach on, ought to report unit or judiciary, and cannot hurt opposite party at will; When the citizen is faced with pressing menace, also can report only unit or judiciary, and cannot make defensive preparation. This kind of idea is apparent and undeserved.
The 2nd, personnel of a few judicatory is used to thinking, " is only pure check " is illegal the behavior of enroach on just is self-defence, if exceed pure the limits that check, belong to mutual affray, hold water to harm blame and even intended homicide intentionally (content is narrated after referring to) . [the trend hints 9]
The 3rd, personnel of a few judicatory is used to thinking, want both sides to there is contradictory, brawl to wait in beforehand and the injured party only, both sides all starts work later atttack the other side, it is mutual affray; Affray behavior brings about other flesh wound, make intended harm crime. But this kind of understanding is not proper.
The 4th, personnel of a few judicatory is used to thinking, mutual affray is illegal, what other harms is cause to hold water to harm a blame intentionally in affray process. But, the place after be like is narrated, the mutual affray that does not have disturbed and public order is not illegal. More important is, the judiciary will be defensive of the person strike back immediately regard mutual affray as, and who to take no account of to start work first executive rough stuff, a lot of judgment also does not mention expressly who starts work first executive force, just use " the descriptive brushstroke such as " of mutual affray, mutual tussle has been taken, even will apparent defensive action described as mutual affray.
The 5th, in recent years, the fault as the injured party gradually the plot of measurement of penalty that standardization ground makes light punishment, to comply with this one practice, the judiciary does not distribute land of green red black and write the illegal enroach on the injured party, regard as the consideration of fault of the injured party in measurement of penalty. A few kinds of case are narrated to all be behaved before regard as for the illegal enroach on the injured party clue of measurement of penalty, and did not regard as illegal block however main content.
In the light of afore-mentioned maintain self-defence maintain the common phenomenon to harm a blame intentionally and its account then for mutual affray, the article advocates establish is as follows regular: In run-of-mill brawl process, start work first carry out to other beat up those who wait for rough stuff, belong to illegal enroach on, start work after strike back (beat up) person cause former light harm, should maintain for self-defence, and ought not to maintain for mutual affray, after ought not to be being maintained more, start work the behavior of the person that strike back makes intended harm crime. Conversely, in run-of-mill brawl, start work first the person that beat up causes flesh wound of the other side, ought to maintain to harm a blame intentionally. This one regulation was reflected getting the legal spirit to frame-up concession, be helpful for protecting law benefit of the citizen already, also be helpful for preventing what harm a case intentionally to happen.
(2) maintain self-defence become to had defended, maintain then for intended harm
The data that the author collects makes clear, exist to maintain self-defence in great quantities really in judicatory practice should hold the court decision to harm a blame intentionally then to had defended. The article is in hard problem of limit of self-defence of this bat around, just lift a few kinds of cases to show the judicatory current situation of intended harm blame slightly.
The first kind: Photograph of measure of beyond the mark requirement suits, bring about maintain self-defence become to had defended, maintain then to harm a blame intentionally. Particularly apparent is, want illegal trespasser to wait for lethal weapon without use cutting tool only, and defensive person used the tool such as cutting tool, cause illegal trespasser to harm, become in order to had defended for maintain to harm a blame intentionally.
For example, on January 7, 2009 10 when make, song Mou of the accused person does business in the fastfood booth to some commerce edifice when, drive to let the tricycle before Song Mou turns vendor's stand through the Sun Mou of here, Xue Mou, song Mou did not grant pay attention to, produce brawl for this. Sun Mou calls namely call up its friend He Mou, Qin Mou and a man (the identity is unspecified) , after 3 people arrive, be opposite Song Mou cuff and kick. Song Mou is beaten up crouch on the ground, conveniently takes a kitchen knife to chop brandish from stall, chop He Mou, Qin Mou, via appraisal of legal medical expert, two average per capita are flesh wound. The court thinks via cognizance, song Mou of the accused person is sufferring other when illegal enroach on, hold a knife to throw 2 people to flesh wound, although belong to self-defence, but exceed necessary limit to cause apparently great damage, answer to investigate criminal duty with harming a blame intentionally. The judge points out: "Song Mou's behavior can not establish self-defence, reason has 2: One, the legislative original intention of self-defence should be pair of illegal enroach on check, although this case can decide Song Mou is sufferring illegal enroach on really at that time, but the He Mou that Song Mou holds knife adversary not to have Cun Tie, Qin Mou is chopped, brandish already was exceeded ' check ' original idea. 2, the injured party is in place to get hurt more, explain Song Mou chopped one knife not merely to the injured party, among them finger of a the injured party is chopped, arm of another the injured party leaves sequela. The place that gets hurt from the injured party, degree looks, song Mou already also exceeded the legislative original idea of self-defence. "[36] but, such court decision is not proper, the judge's argue also holds water hard.
One of, cause casualties to just need to eliminate to violate a gender through self-defence, pure check illegal enroach on and the behaviour that did not cause casualties, make important document objectively with respect to what do not accord with any crime originally, need applicable self-defence to eliminate to violate a gender far from. On the contrary, self-defence is right of illegal enroach on check, expression is damaged to be caused to person of illegal enroach on (" criminal law " the 20th the first stating is " adopt check the behavior of illegal enroach on, cause to person of illegal enroach on damage, belong to self-defence " ) .
Secondly, be opposite in 3 illegal trespasser person of some of the Song Dynasty of the accused person cuff and kick, song Mou is beaten up when crouching on the ground, " of conveniently of Song Mou " takes a kitchen knife to strike back from stall, it is a kind of appropriate defensive action. [the trend hints 10] in this kind of circumstance, requirement the Song Dynasty some can barehanded " is opposite " cuff and kick of 3 illegal trespasser, and must not use kitchen knife, mean Song Mou to be able to bear the cuff and kick of 3 illegal trespasser only actually. Because be below general case, a person is right 3 the individual's cuff and kick, check 3 people are opposite impossibly one the individual's cuff and kick. Change character, be opposite in 3 illegal trespasser person of some of the Song Dynasty when cuff and kick, song Mou uses kitchen knife to chop, brandish checks effectively namely the defensive action of illegal enroach on, did not exceed " to check at all the original idea of " . Besides, at that time, be opposite besides 3 illegal trespasser outside Song Mou cuff and kick, still have Sun Mou, Xue Mou 2 people are attendant (do not be pleasant to the eye to gave 2 people to whether carry out behavior of cuff and kick from judgment) . If ask Song Mou does not use kitchen knife, mean Song Mou to check impossibly illegal enroach on, mean can to frame-up concession [the trend hints 11] . But such conclusion, be accepted impossibly.
Thirdly, sincere be like character like the judge, the injured party is in place to get hurt more, explain Song Mou chopped one knife not merely to the injured party. But, song Mou is not illegal trespasser is chased after illegal trespasser stops enroach on, chop illegal trespasser then, hurt illegal trespasser to be being chopped when Song Mou cuff and kick all the time in illegal trespasser however. As long as illegal enroach on still is undertaking, song Mou can continue to defend of course. Take no account of illegal trespasser whether still having illegal inroad, and the practice that asks Song Mou chops one knife only, apparently undeserved. The place before be like is narrated, connecting general reason condition to fall, check through more serious violent ability only the illegal enroach on of the other side, and cannot check through more slighter than the other side force the violent enroach on of the other side. So, in order to exceed " pure check " maintains Song Mou to had defended for the basis when, have be contrary to life common sense. [the trend hints 12]
Its 4, whether does defensive action pass in judgement at that time, the enroach on that cannot have caused illegal trespasser only is damaged with what defensive man-made becomes undertake comparative, the enroach on that still must cause possibly to illegal trespasser and defensive man-made become damage compare. Because,this is, illegal trespasser may be caused and do not have the enroach on that cause, defend the person carries out the result of defensive action just about. So, for the point of view that measures from law beneficial only, want what defensive man-made becomes to damage the enroach on that did not exceed illegal trespasser to may be caused apparently only, belong to defense impossibly to be become too. In this case, 3 illegal trespasser although " bare-handed " , but their cuff and kick to Song Ji, clear probability causes Song Mou flesh wound and even serious injury, this case of Song Mou strike back cause only among them 2 people flesh wound, cannot think its behavior exceeded necessary limit apparently. Retreat one pace to tell, although of Song Mou strike back behavior causes illegal trespasser to be weighed, also should not maintain become to had defended.
Its 5, to illegal enroach on (include to disobey " public security management sanctions a method " illegal enroach on) when undertaking defending causing flesh wound of person of illegal enroach on, do not establish defense to be become too. With respect to this case character, when 3 people have illegal inroad jointly, song Mou is caused only among them 2 people flesh wound, become impossibly also too. Because " of " flesh wound does not accord with defense to pass,this is in the center cause " great the condition that damages " . 1979 " criminal law " the 17th the 2nd section provision: "Self-defence exceeds necessary limit to cause not due harm, ought to bear criminal responsibility; But ought to extenuation perhaps absolves punishment. "The regulation that " exceeds necessary limit as a result of self-defence is too sweeping, optional in be carried out actually sex is bigger, appeared many problems. For instance, the victim is in be mauled the gangster when illegal enroach on, cannot get protection not only, people police opens person of the small of the stock to make when capturing convict to be atttacked by force mauled, cannot get protection not only, had been defended in case instead should investigate criminal duty. "[37]" because this, edit in penal code grind in drafting a course, the requirement relaxes the voice of self-defence limit requirement is very loud. Cross severe problem to solve self-defence control, working mechanism adopted legislation to relax the proposal of self-defence limit requirement, in a few criminal law modification manuscript perhaps edits the attempt in draft relaxes the limit of self-defence. "[38] then, active " criminal law " the 20th the 2nd section provision: "Self-defence exceeds necessary limit to cause apparently great damage, ought to bear criminal responsibility, but ought to be reduced or absolve punishment. "" sets accordingly, defending behavior wants only is to check place of illegal enroach on needs, the property of defensive action, method, intensity and damaging consequence is not the property that exceeds illegal enroach on apparently, method, intensity, or although cause damage exceed illegal enroach on apparently, but the harm that causes actually does not calculate great, all belong to self-defence. "[the place on 39] put together is narrated, "Cause great damage, the harm that means defensive action place to cause on one hand and the harm that illegal enroach on may cause are great disparity, apparent unbalance, perhaps say, the harm that causes possibly with illegal enroach on is compared, the loss that defensive action causes is too significant; Also mean on the other hand cause what damage commonly not to establish defense to be become too, when just causing death of person of illegal enroach on, serious injury, just belong to defense possibly to be become too. "[40] accordingly, ought to establish is as follows principle, cause the case of illegal trespasser flesh wound to defensive action, because do not accord with " great the condition that damages " , must not maintain become too for defense.
The 2nd kind: Misunderstanding " criminal law " paragraph and the 20th the first the 3rd relation, think to want illegal enroach on to be not belonged to only " criminal law " the 20th case of the 3rd regulation, defensive action caused illegal trespasser casualties, maintain become to had defended, maintain then to harm a blame intentionally.
For example, on September 23, 2004 afternoon, cheng Mou is in the process that moves for the friend, the friend that others of the in collusion with after some wine of Liu of the injured party will come to look for Cheng Mou wants money. At that time, liu Mou sees Cheng Mou in the doorway, dehisce is scolded, and pummel Cheng Mou. Cheng Mou is forced strike back. Liu Mou's partner sees Cheng Mou strike back, undertake beating up to Cheng Mou with brick, board namely. Situation is urgent under, cheng Mou uses the fruit knife that carries to hurt the disclose of a few people such as Liu Mou. Hind appraisal of classics medical jurisprudence, liu Mou is abdominal by Cheng Mou disclose two, liu Mou's injury already formed serious injury. After some court is tried, think, defensive action of Cheng Mou exceeds necessary limit apparently, caused to person of illegal enroach on great damage, reason sentences Cheng Mou set term of imprisonment 2 years. After adjudging, the judge did following specifications: The illegal trespasser of this case is not belonged to do violence, cannot applicable and infinite defense, should come by common defense balance. "When Cheng Mou is sufferring the illegal enroach on that the person without reason such as Liu Mou beats up, the person right that is oneself is avoided suffer the illegal inroad that having, adopt check the behavior of illegal enroach on, cause to person of illegal enroach on damage, belong to self-defence; But Cheng Mou is in defensive process, with fruit knife disclose Liu of the injured party some two, send its to be weighed, send much person to get hurt, the harm that its cause had exceeded the intensity of defensive action far. On put together... some defense becomes Cheng of this person of case the accused too, its behavior accords with what harm a blame intentionally to make important document, answer to penalize with harming a blame intentionally. "[41] but, the argue of forensic court decision and judge, be accepted hard.
Indeed, the Liu Mou in this case reachs the action of its partner, do not accord with certainly " criminal law " the premise condition of the 20th infinite defense of the 3rd regulation, do not belong to the violent crime that having do violence, homicide wait to endanger person security badly namely. But, this is not meant, other must not be caused to be weighed when general self-defence. Well-known, with urgent avoid risk is different, the harm that self-defence place causes, can be more than what place of illegal enroach on causes to damage. For example, in the light of the do violence that harms badly executive defense causes illegal trespasser to die, the law benefit that defensive person place protects (the body) be less than life apparently. Nevertheless, establish self-defence possibly still. Be like again, body law advantage is clear beneficial of overweight property law, but, the person defense that defensive person is stealing comes of flesh wound and even serious injury, same likelihood establishs self-defence. Because,this is, illegal trespasser carries out behavior of illegal enroach on because of its oneself, make he is in the position that is defended, the protective value of its interest is denied inside defensive necessary limit, change character, the interest of illegal trespasser got narrow essentially evaluation. [42] so, although the behavior of illegal trespasser may cause slight injury only when, defensive person causes flesh wound to illegal trespasser, or although the behavior of illegal trespasser may cause flesh wound only when, defensive person causes serious injury to illegal trespasser, also ought not to maintain easily become to had defended. So, cannot think, want to cause serious injury only, and illegal enroach on does not belong to the violent crime that waiting to endanger person security badly in do violence again, belong to defense to be become too.
In this case, some of Liu of the injured party just has much person, cheng Mou is beaten up with fist in Liu Mou, cheng Mou is forced when strike back, liu Mou's partner beats up Cheng Mou with brick, board namely. Liu Mou reachs the action of its partner, it is the behaviour that apparent enough causes Cheng Mou to harm. In this kind of defensive person one person faces much person below the case of illegal enroach on, cheng Mou uses the fruit knife that carries to hurt the disclose of a few people such as Liu Mou, cause the behaviour that Liu Mou hurts again, it is complete in the limit of self-defence. [the trend hints 13] in addition, case fact makes clear, only Liu some person is become to be weighed by disclose, " of other and illegal trespasser gets hurt " is slight harm apparently, but this kind of slight harm, cannot cross the basis that become as cognizance defense.
The 3rd kind: Negligence captures the new violent invasion in the process, foregoing illegal enroach on have the harm that reachs defensive action its to cause only and person of illegal enroach on comparative, bring about maintain self-defence should maintain then to had defended to harm a blame intentionally.
For example, on August 30, 2003 morning 9 when make, ceng Mou of the injured party is after the domiciliary filch cash of some village Tu Mou, be discovered by Tu Mou and chase, ceng Mou escapes at once, be discovered by Lin Mou after, ceng Mou runs to Qi to hide downhill namely in brushwood. Lin Mou cooperates with namely village masses is searched downhill toward Qi together, du Mou of the accused person hears the news to also drive a van and Chen Mou of the accused person, Huang Mou is driven toward Qi downhill. Ceng Mou is discovered by the villager after, before waiting for a person to go up namely, Lin Mou is captured, in capturing a process, ceng Mou holds dagger to revolt, du Mou of the accused person, Chen Mou uses canal of the long knife in the hand, galvanization to hit Ceng Mou back, head namely, ceng Mou escapes to shrimp pond direction later, the person such as Lin Mou is chased subsequently, ceng Mou escapes to pond of 9 areas shrimp around, see can escape without the road, in jumping into shrimp pond, be saved to rise after and send hospital rescue invalid death. Via technical appraisement of legal medical expert, death drowns after the dead's Ceng Mou fastens the head and right back scar. Court of first instance thinks, the behavior of person of two the accused already all made intended harm crime. Because although be revolted by dagger of the hold after masses is captured,steal suspect Ceng Mou, but its did not carry out illegal enroach on to specific target at that time, and round masses reachs 229 people, wide gap of the amount between Ceng Mou and round masses is bigger, bilateral place holds instrument to provide contrast its endanger a gender to also be less than masses far square. Its draw out a dagger is to having minatory effect only, defy capture, person of reason the accused carries out the condition of self-defence not to exist, the apologetic opinion of self-defence does not hold water. Then, sentence set term of imprisonment of Chen Mou of the accused person 7 years with harming a blame intentionally, Du Mou set term of imprisonment 6 years. [43]
However, the adjudicative reason of court of first instance cannot hold water apparently: One of, " criminal procedural law " the 63rd (the 82nd after revising 2012) regulation: "The person of following to having scenario, any citizens can twist instantly send public security mechanism, people the procuratorate or people court processing: (one) executing what commit a crime or be detected immediately after crime; (2) of on record of order circularly the arrest of a criminal at large; (3) escape from prison escapes; (4) be being chased. "So, although criminality has ended, the citizen can capture guilty suspect twist send to the judiciary. Secondly, capture in the citizen in twisting sent process, person of illegal enroach on uses violent revolt, belong to new illegal invasion, the citizen can undertake self-defence of course, can not think defense is not timely absolutely right now, cannot repudiate the premise condition of existence self-defence consequently. Not only such, if the behavior of person of illegal enroach on is accorded with " criminal law " the 269th regulation, belong to after the event to rob, the citizen can undertake self-defence more, can have infinite defence even. Thirdly, round masses does not signify defensive strength more much, if two defensive people are wrong,Ceng Mou uses force, capture impossibly twist send Ceng Mou. So, more or less to judge for the basis with the number only whether to exist self-defence condition, apparently undeserved. Its 4, because can escape without the road,Ceng Mou is, and death drowns in jumping into shrimp pond by oneself. Do not have between the behavior of result of this one death and the accused person causal. Since such, the action that holds the accused person impossibly belongs to defense to be become too.
Maintain self-defence become to had defended, maintain then to harm a blame intentionally, the occurence rate that causes intended harm pain necessarily rises [the trend hints 14] . When the author is reading relevant law document of abroad, the court decision that discovers self-defence is many, but be in so big China, see the court decision of self-defence rarely. The author returns discovery, in judicatory practice, cause defensive person flesh wound to illegal trespasser, and the case that the defensive action of defensive person causes illegal trespasser to be weighed, the action that just holds defensive person commonly makes intended harm crime, and will illegal trespasser treats common the victim completely. Defensive person should bear criminal responsibility not only, assume civil liability to pay compensation even. Illegal trespasser caused other flesh wound, do not assume criminal responsibility not only, can receive civil compensation instead. Such practice, conversely abet harm behavior intentionally. Because people made clear following " logic " from inside a lot of court decision: I beat up you first, if you do not strike back, I need not bear criminal responsibility, you are met only submit to humiliation; If I beat up you first, you strike back cause my flesh wound, we belong to mutual affray, you should assume criminal responsibility and civil responsibility, I also can take petty gain; If I carry out flesh wound to kill behavior to you, you strike back cause me to be weighed, you should assume criminal responsibility and civil responsibility, I do not assume criminal responsibility not only, can receive civil compensation instead. Below this kind of situation, a few people are willing to start work first of course beat up or injure another person. This is a kind of very strange phenomenon, also be the phenomenon that is worth judicatory personnel to think over, idea of change of the member that need judicatory person more gives the phenomenon that correct. [the trend hints 15, this also is the most important a bit]
