Viewpoint | Analysis of the Innovative Development of Justifiable Defense Review Procedure from the Film "Article 20"

In the academic circle of criminal law, the justification of justifiable defense has been discussed. In short, why justifiable defense acts have legitimacy, can not bear criminal responsibility. In academic theory, the more popular is the dualism of combining the principle of personal preservation and the principle of legal confirmation, which is also recognized by some scholars in China.

The principle of personal preservation means that the law allows individuals to take all necessary defensive protection measures, or that individuals who have been attacked by unlawful acts can take the necessary means to preserve themselves. This principle can be explained by the theory of social contract, which has a certain rationality. The conclusion that the infringed person has not evaded the obligation is generally acceptable. But the principle is not without doubt. On the one hand, the criminal law of all countries recognizes the legitimate defense for the benefit of the third party, but the principle of personal preservation cannot explain this point. On the other hand, according to this principle, since no contract can make the citizens give up the right of self-defense when the state can not protect the interests of the citizens, it is impossible to make the citizens give up the right of self-defense on the ground of excessive defense. Therefore, the citizens can defend against the illegal infringers without restriction, so there can be no excessive defense. However, such a conclusion is not in line with the provisions of national criminal law on excessive defense. The principle of personal preservation is even less likely to be copied to our country intact. Because according to the principle of personal preservation, "on the side of personal law, it shows that only legitimate defense is allowed to protect the interests of the individual, but not to protect public order or the legal order itself".^[1]

"The principle of legal confirmation (Rechtsbew à hrungsprinzip) is generally understood as, 'Even if the legal order is violated, it cannot be flinched, but it must be maintained in a serious way to show its existence '." In short, legal confirmation refers to "the defense of the legal order", "the defense of the legal order", "the declaration of the existence of the legal order", and the declaration that "the right must not give in to the wrong". This is because the act of unlawful infringement not only infringes on the interests of individual law, but also infringes on the concept of law and the basic legal order, so the act of defense not only defends the interests of individual law, but also defends the legal order. Because of this, justifiable defense does not need to measure the interests, and the defender has no obligation to retreat. Because the legal order is to protect personal interests after all, everyone can fight against illegal infringement through defensive behavior, and can also carry out self-defense in order to protect the interests of others.

Although the proposition of "no concession to the wrong" is tenable, its content is uncertain and it is difficult to provide a substantial basis for justifiable defense. First of all, if we understand "right cannot give way to wrong" from a supranational point of view, the interest of legal confirmation is a public law interest. If it is said that the interests of the law plus the interests of the infringed are superior to the interests of the infringer, it is necessary to state to what extent the interests of the law are. To say that the defense of the legal order refers to the defense of the legal order of individual legal interests from infringement is just another expression of the principle of individual preservation. Secondly, if we understand from the perspective of the subjective rights of the infringed, it means that the rights of the infringed are absolutely superior to the rights of the illegal infringer. In this case, it is only necessary to compare the interests of the wrongdoer with the rights of the infringed, which can not only show that the infringed has no obligation to retreat, but also show that the damage caused by justifiable defense can be absolutely greater than the damage caused by the wrongdoer, so there is no need to take legal confirmation as the principle of justifiable defense.^[2]

Criminal responsibility shall not be borne for acts of justifiable defense taken in order to protect the public interest, the personal and other rights of oneself or others from ongoing unlawful infringement.

If justifiable defense exceeds the necessary limit and causes undue harm, he shall bear criminal responsibility; however, the punishment shall be mitigated or exempted as appropriate.

In order to protect the state, the public interest, the person, property and other rights of oneself or others from the ongoing illegal infringement, the act of stopping the illegal infringement and causing damage to the illegal infringer shall be self-defense and shall not bear criminal responsibility.

If justifiable defense obviously exceeds the necessary limit and causes serious damage, he shall bear criminal responsibility, but the punishment shall be mitigated or exempted.

Those who take defensive acts against ongoing assaults, murders, robberies, rapes, kidnappings and other violent crimes that seriously endanger personal safety, resulting in casualties of unlawful infringers, shall not be over-defended and shall not bear criminal responsibility.

Article 20 of China's Criminal Law reflects the system of self-defense in China and is an important right granted to citizens by law. When citizens encounter illegal infringement, they should take up the weapon of law and resolutely stop it. This system was written into the criminal law of our country in 1979, but the provisions of the criminal law in 1979 were somewhat narrow. Later, based on the judicial practice over a period of time, when the criminal law was revised in 1997, the restrictions on justifiable defense in the criminal law in 1979 were expanded. The current applicable justifiable defense system is the provisions of the revised criminal law in 1997. The legal significance of this right in our country is to promote social righteousness, protect human rights, and advocate socialist core values. With the continuous change and promotion of the concept of our judicial personnel, this system has been continuously activated and has been deeply rooted in the hearts of the people.

Article 20 of the Criminal Law of our country stipulates three paragraphs. The first paragraph stipulates the general right of defense; the second paragraph stipulates the boundary between legitimate defense and excessive defense; the third paragraph stipulates a special right of defense, that is, when encountering crimes that seriously endanger personal safety, such as assault, robbery, murder, rape, kidnapping, etc., citizens have the right to take unlimited defense, even if they cause casualties to the infringers, citizens are not criminally liable.

In order to accurately apply the justifiable defense system in accordance with the law and safeguard the legitimate defense rights of citizens, the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security issued the Guiding Opinions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on the Application of the Justifiable Defense System in accordance with the Law on August 28, 2020. From the general requirements, the specific application of justifiable defense, the specific application of excessive defense, the specific application of special defense, work requirements and other five substantive laws have made specific provisions.

my country's "Criminal Law" has relatively clear provisions on the entity that constitutes "justifiable defense", but my country's "Criminal Procedure Law" has not yet clearly stipulated how to efficiently and correctly determine that it constitutes "justifiable defense", and there is no separate review procedure.Mainly in:

In judicial practice, defenders are often put on file for investigation on suspicion of intentional injury, and are detained by criminal coercive measures such as detention and arrest, resulting in a great blow to personal freedom and body and mind. my country's "Criminal Procedure Law" stipulates that suspected criminal cases should be investigated by public security and other agencies that exercise investigative powers in accordance with the law, and then reviewed and prosecuted by the procuratorial agency, and finally handed over to the people's court for trial. Among them, the time limit for investigation, the time limit for approval of arrest, the time limit for examination and prosecution, and the time limit for trial of cases are relatively long and complicated. The time limit for detention ranges from 37 days to 23 and a half months, and the time limit for handling cases that can be extended by law has not yet been calculated. Therefore, for example, Wang Xinyuan and Zhao Yinzhi in the Laiyuan anti-homicide case, from July 11, 2018 to March 3, 2019, were detained for nearly 8 months before they were found to constitute legitimate defense. It is not surprising that they were acquitted.

As far as the discussion level is concerned, the author recommends:

With reference to the models of "special procedures" and "public notice procedures" in the Civil Procedure Law, a separate "justifiable defense" special review procedure is set up in my country's Criminal Procedure Law, which distinguishes the defense person from other criminal suspects. Protect the legitimate rights and interests of the defender.Can be specifically considered from the following six aspects:

It is advisable that the self-defense review procedure should be the responsibility of the procuratorate, and the procuratorate should set up an internal organization similar to the procuratorate committee to be responsible for the self-defense review procedure, or directly by the procuratorate committee.

1, the public security organs to apply for start. During the detention period, if the public security organ finds that the criminal suspect may establish justifiable defense, it should apply to the procuratorate to initiate the justifiable defense review procedure before applying for arrest.

2, the procuratorate initiative to start. For cases of great social concern, if the public security organ fails to apply to start the justifiable defense review procedure in time, the procuratorate has the right to start the justifiable defense review procedure by itself.

3, the suspect and the defender to apply for start. In addition to the public security organs applying to the procuratorate for initiation, criminal suspects and defenders should also be given the right to request, and the procuratorial organs should review and judge whether to initiate. Once initiated, the decisions made by public security organs should be implemented.

The current "Criminal Procedure Law" should refer to the time limit for review and approval of arrest, which does not exceed 7 days. This provision is intended to maximize the protection of the legitimate rights and interests of the defender and prevent the defender from being detained for a long time.

In addition to regular methods such as marking papers, interrogation, and inquiry, the review method should also hold hearings to improve the openness of the review and respond to social queries. Considering the secret of investigation activities, there should be a certain choice of the scope of disclosure.

1. It is recommended to withdraw the case. If it can be identified as justifiable defense in the "justifiable defense review procedure", there is no need to wait until the review of arrest and review of prosecution before drawing a conclusion, so as to avoid wasting judicial resources and putting suspects and victims on a huge burden of litigation.

2. Continue the investigation. For those who can not make a judgment of self-defense immediately, the procuratorial organ should put forward clear and specific opinions on continuing investigation to the investigation organ, so as to ensure that the evidence of guilt and innocence can be collected in a timely and sufficient manner, so as to ensure that it is not in vain.

For suspected cases of "justifiable defense" of public concern, the public security and procuratorate should jointly hold a case information conference to desensitize and disclose the key evidence that is necessary to be released and not easy to tamper with in the investigation of the "justifiable defense review procedure", such as surveillance video, photos, traces and appraisal conclusions, so as to enable the public to have comprehensive information on the judgment of the case and prevent the victim from making unrestricted voice through the media, thus presenting one-sided "case information" to the public is conducive to the benign interaction between the judicial organs and public opinion.