Guiding Opinions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on Applying the System of Justifiable Defense According to Law

Fafa [2020] No. 31

Notice of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on Issuing the Guiding Opinions on the Application of the Justifiable Defense System in Accordance with the Law

The higher people's courts, people's procuratorates, and public security departments (bureaus) of all provinces, autonomous regions, and municipalities directly under the Central Government, the military courts and military procuratorates of the People's Liberation Army, the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous Region, and the People's Procuratorate and Public Security Bureau of the Xinjiang Production and Construction Corps:

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 Justifiable Defense System in accordance with the Law are hereby issued for your conscientious implementation.

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

August 28, 2020

Guiding Opinions of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on Applying the System of Justifiable Defense According to Law

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

General 1. requirements

1. Grasp the spirit of legislation and handle cases strictly and impartially. 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 justifiable defense, and resolutely identify those that meet the conditions for the establishment of justifiable defense in accordance with the law. It is necessary to effectively prevent the wrong practices of "who can make trouble who is reasonable" and "who is killed or injured who is reasonable", and resolutely defend the spirit of the rule of law that "the law cannot make concessions to the illegal.

2. Based on the specific circumstances of the case, accurately determined in accordance with the law. It is necessary to base on the specific situation of the defender when defending, comprehensively consider the overall process of the case, 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 tension of the defender when facing illegal infringement, and prevent the defender from being judged by calm, rational, objective and accurate standards under normal circumstances.

3. Adhere to the unity of law, reason and sentiment, and safeguard fairness and justice. When determining whether it constitutes justifiable defense, whether it is excessive defense, and whether it is excessive defense, we should pay attention to finding out the causes and consequences, distinguish the right and wrong, and ensure that the handling of the case is based on the law, reasonable, compatible with the situation, in line with the concept of fairness and justice of the people, and realize the organic unity of legal effect and social effect.

4. Accurately grasp the boundaries to prevent improper identification. For illegal and criminal acts that violate the law in the name of defense, we must resolutely avoid being recognized as justifiable defense or excessive defense. If, although of a defensive nature, the act of defense clearly exceeds the necessary limits and causes significant damage, it shall be deemed as excessive defense in accordance with the law.

Specific Application of 2. Justifiable Defense

5. accurately grasp the causes of justifiable defense conditions. The premise of justifiable defense is the existence of illegal infringement. Illegal violations include not only violations of the rights to life and health, but also violations of personal freedom, public and private property rights; both criminal acts and illegal acts. Unlawful infringement should not be improperly confined to violence or criminal acts. Defense may be exercised against unlawful infringement such as unlawful restriction of another person's personal freedom or unlawful intrusion into another person's home. Unlawful infringement includes both unlawful infringement against oneself and unlawful infringement against the State or public interest or against others. Defense 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 dissuade and stop illegal infringements against other minors that are being committed by minors; if the dissuasion or stop is invalid, defense may be exercised.

6. Accurately grasp the time conditions of justifiable defense. Justifiable defense must be against an ongoing unlawful infringement. If the illegal infringement has formed a realistic and urgent danger, it shall be deemed that the illegal infringement has begun; if the illegal infringement is temporarily interrupted or temporarily stopped, but the illegal infringer still has the real possibility of continuing the infringement, it shall be deemed that the illegal infringement is still in progress; in property crimes, although the illegal infringer has obtained property, but can recover the property through chasing, blocking and other measures, it can be regarded that the illegal infringement is still in progress; if the illegal infringer has indeed lost the ability to infringe or has indeed given up the infringement, it shall be deemed that the illegal infringement has ended. As to whether the illegal infringement has begun or ended, it should be based on the situation of the defender in the defense, according to the general cognition of the public, and make a reasonable judgment in accordance with the law. If the defender has a wrong understanding of whether the illegal infringement has begun or ended due to panic, tension, etc., it should be dealt with properly in accordance with the principle of unity of subjectivity and objectivity.

7. Accurately grasp the object conditions of justifiable defense. Justifiable defense must be carried out against the wrongdoer. For multiple people who jointly commit illegal infringements, they can defend against those who directly commit illegal infringements, or defend against those who jointly commit illegal infringements on the spot. Knowing that the infringer is a person without criminal responsibility or a person with limited criminal responsibility, he shall try his best to use other methods to avoid or stop the infringement; if there is no other way to avoid or stop the illegal infringement, or if the illegal infringement seriously endangers personal safety, he may fight back.

8. Accurately grasp the intention conditions of justifiable defense. Justifiable defense must be for the purpose of protecting the state, the public interest, the person, property and other rights of oneself or others from unlawful infringement. A defensive provocation that deliberately provokes the other party to invade itself with language, behavior, etc. and then counterattacks should not be regarded as a defensive act.

9. Accurately distinguish between defensive behavior and mutual fighting. Defensive behavior and mutual fighting are similar in appearance. To accurately distinguish between the two, we should adhere to the principle of unity of subjectivity and objectivity. Through comprehensive consideration of the cause of the crime, whether there is any fault in the escalation of the conflict, whether to use or prepare to use murder weapons, whether to use obviously inconsistent violence, whether to gather others to participate in fighting and other objective circumstances, we can accurately judge the subjective intention and nature of the actor.

When a dispute occurs over trivial matters, both parties cannot exercise restraint and cause a fight. For the party at fault who starts the fight first and the means are obviously extreme, or if one party starts the fight first and continues to infringe even though the other party tries to avoid the conflict, the act of fighting back against one party should generally be recognized as a defensive act.

The two parties have conflicts over trivial matters. After the conflict is over, one party implements illegal infringement, and the other party retaliates, including using tools to fight back, which should generally be regarded as defensive behavior. The determination of the intent of the perpetrator's defense cannot be affected simply by the fact that he or she has prepared for defense in advance.

10. To prevent the abuse of the right of defense from being recognized as an act of 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, it shall not be regarded as a defensive act. The unlawful infringement is caused by the perpetrator's major fault. If the perpetrator still deliberately uses a method sufficient to cause serious injury or death to fight back when other means can be used to avoid the infringement, it shall not be regarded as a defensive act.

Specific application of excessive 3. defense

11. Accurately grasp the conditions for the determination of 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" at the same time.

12. Accurate determination of "clearly exceeding the necessary limit". Whether the defense "obviously exceeds the necessary limit" should be judged by combining the nature, means, intensity, degree of harm and the timing, means, intensity and consequences of the defense, taking into account the balance of power between the two sides, based on the situation in which the defender is defending, and taking into account the general cognition of the public. When judging the harm degree of illegal infringement, we should not only consider the damage already caused, but also consider the imminent danger and realistic possibility of causing further damage. The defender should not be required to respond in a manner and intensity that is essentially equivalent to an unlawful infringement. Through comprehensive consideration, if there is a great difference between defensive behavior and unlawful infringement and is obviously extreme, it should be determined that the defense obviously exceeds the necessary limit.

13. Accurate determination of "causing significant harm". "Causing significant damage" means causing serious injury or death to the wrongful infringer. Those causing minor injuries and damages below are not considered major damages. Defensive acts that obviously exceed the necessary limits but do not cause significant damage shall not be deemed excessive.

14. Accurately grasp the penalty discretion of excessive defense. Criminal responsibility for excessive defense shall be borne, but the punishment shall be mitigated or exempted. It is necessary to comprehensively consider the situation of the case, especially the degree of fault of the illegal infringer, the seriousness of the illegal infringement, and the panic and tension of the defender in the face of the illegal infringement, so as to ensure that the penalty is appropriate and fair. For the illegal infringement that seriously derogates the human dignity of others and seriously violates ethics and morality, or the excessive defensive behavior caused by repeated and long-term illegal infringement, full consideration should be given in sentencing, so as to ensure that the handling of the case can not only withstand the legal test, but also conform to the concept of social fairness and justice.

Specific application of 4. special defense

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

Accurately understand and grasp "murder, robbery, rape, kidnapping". The "homicide, robbery, rape and kidnapping" stipulated in the third paragraph of Article 20 of the Criminal Law refers to specific criminal acts rather than specific charges. In the course of committing illegal infringement, there are violent crimes that seriously endanger personal safety, such as murder, robbery, rape, kidnapping, etc., such as robbing guns, ammunition, explosives by violent means, or abducting women or children by means of kidnapping, special defense may be exercised. If the act in question does not seriously endanger personal safety, the legal provisions on general defense shall apply.

17. Accurately understand and grasp "other violent crimes that seriously endanger personal safety". The "other violent crimes that seriously endanger personal safety" stipulated in the third paragraph of Article 20 of the Criminal Law shall be violent crimes that are equivalent to homicide, robbery, rape, or kidnapping, and have the urgent danger of causing serious injury or death and the real possibility.

18. Accurately grasp the relationship between general defense and special defense. For defensive acts that do not meet the conditions of special defense causes and cause casualties to unlawful infringers, if they do not obviously exceed the necessary limit, they should also be regarded as justifiable defense and should not bear criminal responsibility.

5. job requirements

19. Do a good job of investigation and evidence collection. When handling cases involving legitimate defense, public security organs should 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 fair handling of the case in accordance with the law. Evidence collection work should be timely. If there are audio-visual materials, electronic data and other evidence materials at the scene of the conflict, they should be retrieved as soon as possible; witnesses in the process of the conflict should be questioned as soon as possible. The work of obtaining evidence should be comprehensive, and all kinds of evidence that is valuable to prove the facts of the case should be collected in a timely manner in accordance with the law, especially the evidence related to judging whether it is a defensive act, whether it is justifiable defense or excessive defense, and the causes and consequences of the case.

20. Handle cases fairly according to law. It is necessary to comprehensively review the facts and evidence, carefully listen to the opinions of all parties, attach great importance to the justifiable defense or excessive defense and defense opinions put forward by criminal suspects, defendants and their defenders, and check them in time to accurately determine the facts and correctly apply the law. Timely disclosure of case-handling progress and other work information to respond to social concerns. For cases determined to be justifiable defense according to law, in accordance with the provisions of the Criminal procedure Law, a decision shall be made in a timely manner not to file a case, to withdraw the case, not to approve the arrest, not to prosecute, or to adjudicate the defendant's innocence. For cases of excessive defense, the leniency system of pleading guilty and admitting punishment shall be applied in accordance with the law; if the circumstances of the crime are minor and there is no need to be sentenced or exempted from punishment in accordance with the law, the people's Procuratorate may make a decision not to prosecute. If the wrongdoer is suspected of committing a crime, he shall be prosecuted in a timely manner in accordance with the law. If the people's court hears a case involving justifiable defense in the first instance, if the social impact is great or the case is complicated, the people's assessors and judges shall form a collegial panel to hear the case; if the social impact is significant, the people's assessors and judges shall form a seven member collegial panel to hear the case.

21. Strengthen the work of interpretation and analysis. It is necessary to focus on the focus of case disputes and social concerns, take the facts as the basis and the law as the criterion, accurately and carefully clarify the basis and reasons for handling the case, strengthen the interpretation and analysis of legal documents, and effectively respond to the concerns of the parties and the society, so as to make the case a public course on the rule of law for the whole people to popularize the law, and achieve the effect of handling a case and education. We should do our best to resolve contradictions and promote social harmony and stability.

22. Do a good job in the publicity of the rule of law. It is necessary to conscientiously implement the law popularization responsibility system of "who enforces the law, who popularizes the law", and do a good job of using cases to make the handling of justifiable defense cases a process of popularizing the law and promoting socialist core values. It is necessary to increase the release of guiding cases and typical cases involving legitimate defense, take a clear-cut stand to 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 accordance with the law, rationally, and peacefully, and eliminate social hostility. Promote social harmony.