Promulgation Date: 2020-8-28 Title: 最高人民法院、最高人民检察院、公安部关于依法适用正当防卫制度的指导意见 Document Number:法发〔2020〕31号 Expiration date: Promulgating Entities:法发〔2020〕31号 Source of text: http://www.court.gov.cn/zixun-xiangqing-251611.html
These Opinions are drafted on the basis of the “Criminal Law of the PRC” and the "Criminal Procedure Law of the PRC' together with actual work conditions, so as to correctly apply the justified defense system in accordance with law, to encourage people to stand up for what's right, promote social integrity, and integrate the core Socialist Values into Criminal Justice work.
I. General Requirements
1. Grasp the spirit of the legislation and handle cases strictly and fairly. Justified defense is a right granted to citizens by the law. The legal provisions and legislative intent regarding justified defense should be properly understood and mastered, to make findings on the establishment of conditions for justified defense resolutely in accordance with law. The erroneous practice of 'finding grounds for whoever makes a fuss' and 'finding grounds for anyone injured' should be fully stopped to resolutely defend the spirit of the rule of law in the 'law making no concessions to lawlessness'.
2. Based on the specific facts of the case, make accurate designations in accordance with law. The overall case progression should be considered from the specific circumstances of the defender along with the possible responses of ordinary people in similar situations, to correctly understand the timing and limits of defense. The urgency and anxiety of the defender in facing the unlawful offense should be fully considered, to avoid judging them after the fact according to the standards of calmness, rationality, objectivity, and accuracy in a normal situation.
3. Persist in unifying law, reason, and emotion, to preserve fairness and justness. When determining whether justified defense was established and whether defense was excessive, and in sentencing for excessive defense, emphasize causation and distinguish between right and wrong to ensure that cases are handled in accordance with the law, are reasonable, and fit the situation, and that the conform to the people's concept of fairness and justice, and realize the organic unity of legal and social effects
4. Correctly understand the outer limits to prevent improper designations. Resolutely avoid designating violations and crimes committed in the name of defense as justified defense or excessive defense. Defensive conduct that clearly exceeds the degree necessary and causes serious harm shall be lawfully found to be excessive defense.
II. Specific Applications of Justified Defense
5. Correctly understand the conditions giving rise to justified defense. The existence of an unlawful offense is a prerequisite for justified defense. Unlawful offenses include both conduct that infringes on the rights to life and health, and also conduct that violates rights to physical liberty and personal property; it includes both criminal conduct and violations. Unlawful offenses should not be limited to violent infringement or criminal behavior. Self-defense may be conducted in response to illegal restrictions of others' physical liberty, illegal entry into others' domiciles, and other unlawful offenses. Unlawful encroachment includes both unlawful offenses against oneself, and also unlawful offenses against the state, the public interest, or directed at others. Defense may be carried out against currently occurring illegal and criminal acts that impede safe driving and endanger public safety, such as pulling at the steering wheel or striking a driver. Where minors are currently carrying out unlawful offenses aimed at other minors, adults shall dissuade and stop them, and where this is not effective, may carry out a defense.
6. Correctly understand the timing requirements for justified defense. Justified defense must be aimed at unlawful offenses being carried out at that moment. Where unlawful offenses comprise a real and imminent danger, it shall be found that the unlawful offense has already begun; where an unlawful offense has been suspended or stopped by there is still a real possibility of it continuing, it shall be found that the unlawful offense is still continuing; where the unlawful offender has already obtained property in property crime, but the property can be recovered through pursuing or blocking them, or by other such measures, the unlawful offense may be viewed as continuing; but where the unlawful offender has truly lost the capacity to continue the offense or has truly abandoned the offense, it shall be viewed as the unlawful offense having stopped. Whether an unlawful offense had begun or concluded should be reasonably judged in accordance with law on the basis of the situation in which the defender was defending, and in accordance with the normal understanding of the public, and unreasonable demands requirements must not be placed on the defender. Where panic or anxiety caused the defender to incorrectly identify the start or end of an unlawful offense it shall be properly handled in accordance with law based on the principle of unifying subjective and objective viewpoints.
7. Correctly understand the requirements for the target of justified defense. Justified defense must be directed at unlawful offenders. Where several people jointly carry out unlawful offenses, defense may be carried out both against the unlawful offender directly committing the unlawful offense and may also be carried out against the joint offenders that are at the scene. Where it is clearly known that the unlawful offender is a person who lacks or has limited criminal responsibility, other methods should be used to avoid or stop the offense to the extent possible; but where there is no other way to avoid or stop the unlawful offense, or where the unlawful offense seriously endangers physical safety, a counter attack may be made.
8. Correctly understand the intentionality requirements for justified defense. Justified defense must be to avoid illegal harm to the state, public interest, or the person or property of others or oneself. Defense following the intentional use of language or conduct to provoke an attack on oneself so that one can fight back should not be identified as defensive conduct.
9. Correctly differentiate between defensive acts and exchanging blows. Defense and mutual exchange of blows appear outwardly similar and the principal of combining objective and subjective criteria should be applied to correctly distinguish them by using a comprehensive consideration of objective circumstances such as the reasons for the case, whether there was fault in escalating the conflict, whether weapons were used or ready for use, whether clearly unbalanced violence was used, and whether others were brought into the fight, and correctly assessing the actors' subjective plans and the nature of their acts.
In disputes occurring over trivial matters where both sides can't restrain themselves and come to blows, where one party is at fault and acts first and by clearly excessive means, or one party acts first and continues the offense while the other party strives to avoid conflict, the party that returns an attack shall normally be found to be acting defensively.
Where a conflict occurs between two parties over trivial matters, and after the conflict is concluded one party starts an unlawful offense again and the other side returns blows, including using instruments to return blows, it shall generally be found to be a defensive act. The determination of the defensive intentions of the perpetrator should not be affected only because the perpetrator has prepared for defense in advance.
10. Prevent acts abusing the right to self-defense from being designated as defensive acts. Where an actor that can recognize that an unlawful offense is clearly minor directly uses methods to stop it that could result in serious injury or death, it should not be found to be a defensive act. Where an unlawful offense is brought on by the major fault an actor, and the actor could use other tactics to avoid the offense but still uses methods that could seriously harm or death to return blows, it should not be found to be a defensive act.
III. Specific Applications of Excessive Defense
11. Correctly understand the requirements for a determination of excessive defense. Based on the provisions of Criminal Law article 20, paragraph 2, determinations of excessive defense shall simultaneously satisfy two requirements: 'clearly beyond the degree necessary' and 'causing serious harm, with both required.
12. Correctly identify [defense that] is "clearly beyond the degree necessary." An assessment of whether the defense "clearly exceeds the necessary degree" shall be made in light of the circumstances in which the defender found themselves in accordance with the general understanding of public through comprehensive consideration of the nature, tactics, intensity, and degree of harm of the unlawful offense, and the timing, tactics, intensity, and harmful consequences of the defense, taking into account the relative degree of force between the two parties. When assessing the degree of threat from the unlawful offense, consider not only the harm that it has already caused but also the imminent threat and real likelihood of further harm being caused. It should not be demanded that the defender must is required to counterattack with a method and intensity that is basically equivalent to the unlawful violation. Where through comprehensive consideration the defensive behavior is found to be very different from the unlawful offense and is obviously excessive, it should be held that the defense clearly exceeded the degree necessary.
13. Correctly identify 'causing serious harm'. "Causing serious harm" refers to causing the unlawful offender to be seriously injured or die. Where minor injuries or less are caused, it is not serious harm. Even where defensive conduct clearly exceeds the necessary extent, it should not be designated as excessive defense where it did not cause serious harm.
14. Accurately grasp discretion in penalties for excessive defense. Criminal responsibility shall be borne for excessive defense but punishment shall be reduced or waived. The circumstances of the case should be considered especially the degree of the unlawful offender's fault, the seriousness of the unlawful offense, and the defender's psychology such as panic or anxiety, to ensure the appropriateness and fairness of the penalty. Where defense is brought on by the commission of unlawful offenses that seriously harm personal dignity, seriously violate ethics and morality, or committing multiple offenses over a long period of time, this shall be considered in sentencing to ensure that the handling of cases can stand the test of law and conform to the public's concept of fairness and justice.
IV. Specific Applications of Special Defense
15. Accurately understand and grasp the meaning of "do violence". Based on the provisions of Criminal Law article 20, paragraph 3, the following conduct shall be found to be 'doing violence': (1) using lethal weapons to seriously endanger the physical safety of others; (2) Where no weapons or lethal weapons are used, but there is truly a serious threat to the physical safety of others based on circumstances such as the number of unlawful offenders or the part of the body stuck. Even where no actual injury was caused, it may be found to be 'doing violence' where there is a serious and imminent threat to physical safety.
16. Correctly understand and grasp the meaning of 'homicide, robbery, rape, and kidnapping'. "Homicide, robbery, rape, and kidnapping" as provided for in article 20, paragraph 3, of the Criminal Law, refers to specific criminal conduct and not to specific charges. Special defense may be carried out where homicide, robbery, rape, kidnapping, or other violent conduct that seriously threatens physical safety occurs in the course of carrying out unlawful violations, such as using violent methods to steal guns, ammunition, or explosives, or using kidnapping to traffic women or children. Where the relevant conduct does not seriously threaten physical safety, legal provisions on ordinary defense shall be applied.
17. Correctly understand and grasp the meaning of "other violent crimes that seriously endanger physical safety". The "other violent crimes that seriously endanger physical safety" provided for in article 20, paragraph 3, of the Criminal Law shall be violent crimes that have a real possibility and imminent threat of causing serious injury or death.
18. Correctly understand the relationship between ordinary and special defense. Where defensive conduct causes the death of the unlawful offender but the requirements giving rise to special defense are not satisfied, it shall also be viewed as justified defense if it was not clearly beyond the degree necessary, and criminal responsibility is not to be borne.
V. Work Requirements
19. Do a good job in efforts to investigate and collect evidence. When public security organs handle cases of justified defense, they should lawfully, promptly, and comprehensively collect all types of evidence related to the case to law a factual foundation for the just handling of the case in accordance with law. Efforts to collect evidence should be timely, with audiovisual materials or electronic data from the scene of the conflict shall be collected at the first possible moment, and eyewitnesses to the conflict questioned as soon as possible. The collection of evidence shall be comprehensive and all types of evidence with value towards proving the fact of the case shall be promptly collected in accordance with law, especially evidence involving whether acts were defensive, whether they were justified or excessive defense, and showing causation and reasons for the case consequences.
20. Handle cases fairly and in accordance with the law. Fully review the facts and evidence, earnestly hear the comments of all sides, put great emphasis on justified or excessive defense arguments and defense comments put forward by suspects, defendants, and defenders, and promptly verify them and correctly apply the law by accurately finding the faces. Case progress and other work information should be promptly disclosed in response to public concern. In cases found to be justified defense, promptly make a decision based on the provisions of the Criminal Law to not open a case, withdraw a case, not approve arrest, or not indict, or find the defendant not guilty. In cases of excessive defense, the plea leniency system shall be applied in accordance with law; and where the case is minor and it is not necessary to give a criminal sentence or a penalty can be waived, the people's procuratorate may make a decision to not prosecute. Where the unlawful offender is suspected of a crime, they shall be pursued in accordance with law. Where people's courts hear first instance cases involving justified defense with a large social impact or that are complicated, people's adjudicators and judges are to form a collegial panel for trial; where the social impact is very large, people's assessors and judges are to form a seven-person collegiate panel to conduct trial.
21. Strengthen efforts on legal interpretation and analysis. Revolving around the points of contention and societal concern, with the facts as a basis and the law as their measures, correctly and precisely explain the basis and reasons for handling the case, strengthening interpretation and analysis of legal documents, effectively respond to the parties' and public's concerns, to make case-handling an open class on popular legal education for all citizens, to achieve the effect of every case handled being a part of education. Conflicts should be resolved and social harmony and stability should be promoted as much as possible.
22. Do a good job on legal publicity efforts. The system of responsibility for popular legal education in which 'those enforcing the law, educate on the law' should be earnestly implemented, doing a good job of using cases to explain the law, making the handling of cases of justified defense part of popular legal education for all citizens and promotion of the core socialist values. Expand the publication of guiding cases and case examples involving justified defense, taking a clear stand to protect the lawful rights and interests of defenders and those who stand up for what's right, promoting social integrity, and guiding the public to resolve trivial disputes in a rational and peaceful way in accordance with law, and eliminating social hostility and promoting social harmony.