Case Description

Recently, a woman in a barbecue shop in Tangshan City refused to be harassed and was repeatedly subjected to beatings. While condemning the perpetrator and caring for the victim, people are pondering whether, if they were on the spot, they could act righteously and take action to prevent the perpetrator's atrocities, and how to avoid excessive defense.

Lawyer Analysis

Article 20 of the Criminal Law stipulates that: "An act taken to stop an unlawful infringement in order to protect the interests of the state, the public, or the personal, property, or other rights of oneself or another person from ongoing unlawful infringement, which causes harm to the perpetrator, is justifiable defense and shall not bear criminal responsibility. If justifiable defense clearly exceeds the necessary limit and causes significant harm, criminal responsibility shall be borne, but the punishment shall be mitigated or exempted. For an ongoing murder, homicide "Robbery, rape, kidnapping, and other violent crimes that seriously endanger personal safety, and taking defensive actions that cause casualties to the illegal infringer, are not considered excessive defense, and they shall not bear criminal responsibility."

The implementation of justifiable defense without criminal responsibility requires the following conditions to be met:

1. Causal conditions. The premise of legitimate defense is the existence of unlawful infringement. Illegal infringement includes both violations of the rights to life and health, as well as violations of personal freedom, public and private property, and other rights; It includes both criminal and illegal acts. Illegal infringement includes not only illegal infringement against oneself, but also illegal infringement that endangers the national and public interests or against others.

2. Time conditions. Justifiable defense must be directed against the ongoing unlawful infringement. If the illegal infringement has formed a realistic and urgent danger, it should be recognized that the illegal infringement has started; If the illegal infringement is temporarily interrupted or stopped, but the illegal infringer still has a realistic possibility of continuing to commit the infringement, it shall be deemed that the illegal infringement is still in progress; In property crimes, if the illegal infringer has obtained property, but can recover it through measures such as chasing or blocking, it can be considered that the illegal infringement is still in progress; "If the illegal infringer has indeed lost his ability to infringe or has indeed abandoned the infringement, it shall be deemed that the illegal infringement has ended.".

3. Object conditions. Justifiable defense must be directed against the offender. If multiple people jointly commit illegal infringement, they can defend against the person directly committing the illegal infringement or against the person jointly committing the illegal infringement on the spot.

4. Conditions of defense intent. "Self defense must be aimed at protecting the interests of the state, the public, and the personal, property, and other rights of oneself or others from unlawful infringement.". Defense provocations that intentionally provoke the other party to harm themselves through language or behavior, and then retaliate, are not considered defensive acts.

5. Justifiable defense cannot significantly exceed the necessary limit to cause significant damage. Whether defense "significantly exceeds the necessary limit" should be judged based on the strength comparison between the two sides, the situation in which the defender is defending, and the general perception of the public. The defender should not be required to adopt a counterattack method and intensity that is basically equivalent to the illegal infringement. "Causing significant harm" refers to causing serious injury or death to the illegal infringer. "Those who cause minor injuries or below are not considered significant damages.". "A defensive act that clearly exceeds the necessary limit but does not cause significant harm shall not be considered as excessive defense.".
Situations of special defense: Taking defensive actions against ongoing murders, homicides, robberies, rapes, kidnappings, and other violent crimes that seriously endanger personal safety and meet the aforementioned conditions 1-4, causing casualties to the illegal infringer, does not constitute excessive defense and does not bear criminal responsibility.

According to the relevant provisions of the Criminal Law and the Guiding Opinions on the Application of the Legitimate Defense System in accordance with the Law, it is believed that although the perpetrators did not use a lethal weapon in the Tangshan Barbecue Shops' Siege, based on the number of perpetrators, the location of the attack, and the intensity of the attack, it is believed that the personal safety of the victim has been seriously endangered or that serious and urgent danger has been caused to the personal safety of the victim, and can be considered as an "perpetrator." Therefore, The provisions on special defense may apply. At this time, if someone acts bravely and justifiably, causing casualties to the perpetrator, it does not constitute excessive defense and does not bear criminal responsibility.