Standing your ground, China style

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Cases involving the right to protect oneself and the determinations of when such a defense is justified can evoke a passionate public response in any country, and China is no exception. When a victim is seen as being punished for defending themselves or others, it can seem fundamentality unjust and undermine the authority of the justice system. At the same time, when violence is excused as the exercise of justifiable defense it can be viewed as allowing someone to get away with murder, lowering confidence in the laws’ ability to protect us all.

  • What degree of force can be used?
  • Can force be used to protect property?
  • Do you need to run away if possible, before defending yourself?
  • When is a threat considered no longer present?
  • What if someone mistakenly feels threatened?

Unfortunately, questions such as these in defense cases must often be resolved by considering subjective perceptions of the events and no case will ever appear the same to all people nor will any judgment ever make everyone happy.

New Guiding Opinions (the Opinions) released by China’s courts and criminal justice agencies attempt to help the authorities navigate these cases in a way that will be both true to the rule of law while also satisfying the public. This is accomplished both by clarifying rules and principles, but also by calling for greater transparency in explaining the law to the public.

Public Reckoning

One remarkable feature of the Opinions is their explicit concern for public opinion. China’s criminal justice system has long called for integrating cases’ legal and social impact. This generally means that one of the goals of a case is to resolve the matter in a way that satisfies the parties and the public that justice has been done, restoring social equilibrium after the crime or dispute.

The Opinions echo this general call and provide specific means for achieving this goal. This is done primarily by emphasizing publicity and education, using cases to explain the law on how verdicts are reached and also requiring the release of regular case updates where the public is interested. Another tactic is the inclusion of people’s assessors (lay judges) in the collegial panel hearing higher-profile defense cases. While the people’s assessor system is not a jury system, it does allow the possibility and appearance of injecting popular opinion into the decision-making process. In addition to providing new perspectives on the case facts, the use of people’s assessors can aid judges by adding legitimacy to the court’s decision and relieving some of the pressure on judges by diffusing responsibility for the decision.

Finally, in cases of ‘excessive defense’ -some of the stickiest cases where even though an attack is recognized as defense, the defender must still bear some level of criminal responsibility – the Opinions suggest reliance on the ‘plea leniency‘ system. The plea leniency system is an ongoing reform in Chinese criminal justice in which offenders are given reduced sentences for admitting their guilt and conceding that the penalty is appropriate. Use of the plea leniency system in ‘excessive defense’ cases could help reduce the perception that a defender is being unjustly punished.

Overview of Defense Law

China’s Criminal Law has a single article devoted to defense:

Article 20:

Where conduct is employed to stop an ongoing unlawful infringement of State or public interests, or of one’s own or another’s rights such as in person or property, causing harm to the unlawful violator, it is justifiable defense, and criminal responsibility is not borne.

Where legitimate defense clearly goes beyond the degree necessary and creates a serious harm, criminal responsibility shall be borne, but punishment shall be reduced or excused.

Where one acts to defend against on-going violence, murder, robbery, rape, kidnapping or any other violent crime that seriously endangers his personal safety, thus causing injury or death to the perpetrator of the unlawful act, it is not excessive defense, and criminal responsibility is not borne.

The first paragraph can be seen as laying out the basic requirements for establishing justified defense, the second discusses ‘excessive defense’, and the third addresses the special situation of when lethal force can be used in defense. Each will be discussed below.

JUSTIFIED DEFENSE

Where conduct is employed to stop an ongoing unlawful infringement of State or public interests, or of one’s own or another’s rights such as in person or property, causing harm to the unlawful violator, it is justifiable defense, and criminal responsibility is not borne.

Click through the tabs below to see the provisions introduced by the Opinions on each topic:

OffenseTimingIntent

Where conduct is employed to stop an ongoing unlawful infringement of State or public interests, or of one’s own or another’s rights such as in person or property, causing harm to the unlawful violator, it is justifiable defense, and criminal responsibility is not borne.

The justified defense must be in response to an unlawful infringement (an offense)

  1. Unlawful’ means that it amounts to either a crime or an administrative violation
  2. An infringement or offense can be a threat to life, property, or physical liberty
  3. This threat may be aimed at others as well as oneself, others, or even at the state or public interest,
  4. Where the infringement is between minors, adults should try to deescalate the situation before attempting a defense.

Where conduct is employed to stop an ongoing unlawful infringement of State or public interests, or of one’s own or another’s rights such as in person or property, causing harm to the unlawful violator, it is justifiable defense, and criminal responsibility is not borne.

Justified offense must address a current threat, and must not be anticipatory before a threat begins or retaliatory after the threat has ended.

  1. An offense has begun when it poses a real and imminent threat.
  2. An offense ends when the offender has lost the capacity to continue carrying out the offense.
  3. An offense is still ongoing when momentarily suspended, if there is a real chance that it might continue,
  4. An offense against property is still ongoing where the property has already been taken if it could still be recovered by pursuing the offender or blocking their escape.
  5. Whether an offense is ongoing requires consideration of the alleged defenders’ subjective knowledge and perspective.

Where conduct is employed to stop an ongoing unlawful infringement of State or public interests, or of one’s own or another’s rights such as in person or property, causing harm to the unlawful violator, it is justifiable defense, and criminal responsibility is not borne.

  1. The goal of the defensive action must be to avoid harm to public or state interests, to persons, or to property.
  2. Where the ‘defender’ encouraged or brought on the offense against them, they cannot then ‘defend’ against it.

The new Opinions recognize that trying to understand the intent of the parties is likely the most challenging and controversial part of ruling on defense, and provides a number of objective factors to consider in trying to determine intent. For example, being prepared in advance to defend oneself does not preclude justified defense, and while the defender is not required to match the methods and intensity of the offense against them, the use of grossly disproportionate force against a clearly minor offense may speak to intent.

Determining whether conduct is defensive can be particularly difficult where there is a struggle and both sides are actively fighting. The Opinions hold that where one side escalates a fight by using weapons or a disproportionate amount of force, the other side may still be justified in defending against them, and even the party that initiates a fight may be justified in their defense if the fight was ending and the other party reinitiates it.

EXCESSIVE FORCE

Where legitimate defense clearly goes beyond the degree necessary and causes serious harm, criminal responsibility shall be borne, but punishment shall be reduced or excused.

Even where acts are found to be defensive, some criminal responsibility may be borne where the amount of force used was clearly excessive. The Opinions clarify that a finding of excessive defense requires that the acts were BOTH beyond the degree necessary and that they caused serious harm, with serious harm means death or ‘serious injury’ as defined in legal standards. This means even the use of lethal weapons might not be punishable if for any reason a serious injury is not caused. Remember though, that the use of seriously disproportionate force might still speak to the ‘defender’s’ intent.

The more challenging determination is whether the defense went beyond the degree necessary. This requires a comprehensive consideration of the nature, tactics, intensity, and degree of harm of both the unlawful offense and of the resulting defense. The defender doesn’t need to match the offense precisely but does need to respond reasonably for a normal person in the same situation.

Penalties

Where defense is found to be excessive the defender’s punishment should still be reduced, or even waived, in recognition of the defensive motive. The Opinions tell judges to consider the relative degree’s of fault for the confrontation, and also the defender’s psychological state at the time. This suggests that even where an unreasonable amount of force is found to have been used, punishment can be reduced due to the subjective distress of the defending victim. More interesting still, the Opinions say that the immorality or audacity of the offense can be considered, suggesting that it is more forgivable to use of greater force against an outrageous offense.

SPECIAL DEFENSE (Unrestricted Defense)

Where one acts to defend against on-going violence, as well as murder, robbery, rape, kidnapping or any other violent crime that seriously endangers his personal safety, thus causing injury or death to the perpetrator of the unlawful act, it is not excessive defense, and criminal responsibility is not borne.

China’s Criminal Law provides greater latitude, including on the use of lethal force, for the defense against certain types of violent offenses. As a matter of law, the defense is not excessive in these situations.

The Opinions clarify that the ultimate requirement for special defense is that the defense was in response to a real possibility of serious injury or death. The injury does not need to have occurred, but the threat must be real.

Accordingly, the Opinions interpret ‘ongoing violence’ to include any use of deadly weapons in an offense or other situations that pose a similar threat based on the number of assailants or the way they are attacking. The Opinions also clarify that the listed crimes of ‘murder, robbery, rape, and kidnapping’ reflect conduct, and do not require that the offender have been charged, or eligible to be charged, with those crimes- thus avoiding a mini-trial on the guilt of the offender.

About Jeremy Daum 104 Articles
Jeremy Daum is Alex Daum's dad, Elizabeth Jenkins' Partner, China Law Translate's contributing founder, and a Senior. Fellow at Yale Law School's Paul Tsai China Center. He translates, writes, edits, does web-design, graphic design, billing, tech support, and social media outreach for China Law Translate.

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