Case 10 of the distinction between excessive and justifiable defense

Excessive defense refers to the act of defense that clearly exceeds the necessary limit and causes major harm to the unlawful aggressor. Its basic characteristics are: (1) objectively carrying out an act that clearly exceeds the necessary limit and causing significant damage to the wrongdoer.

2) Subjectively guilty of the misconduct and its consequences. As for the form of sin, it can only be indirect intent or negligence.

1.You are walking on the road and someone is robbing you.

You beat them up until the criminals give up the robbery and run away or are injured and can no longer rob. It is justified self-defense. Then you get angry and keep fighting, and beating people to the point of serious injury or death is over-defense.

2.You walk down the road and see someone robbing someone.

You beat them up until the criminals give up the robbery and run away or are injured and can no longer rob. It is justified self-defense. Then you get angry and keep fighting, and beating people to the point of serious injury or death is over-defense.

Justifiable defense refers to acts that do not exceed the necessary limits to stop acts that endanger the state, the public interest, or the person, property, or other rights of oneself or others. The so-called excessive justifiable defense refers to the act of stopping sexual acts that clearly exceed the necessary limits and cause major harm to the unlawful offender.

"not exceeding the necessary limit" means that the state of the unlawful act has been stopped, the state of the unlawful infringement has been completed, and the dangerous state has been eliminated. For example, if a person robs with a knife, and the person being robbed resists in self-defense, knocks over the person who is robbing and takes the knife he is holding, and stabs the person who robs, and the illegal infringement of the person who robs has been stopped, and the state and danger of the illegal infringement have ended, the damage caused by the act of stopping has ended "not exceeding the necessary limit".

Where the justified defense clearly exceeds the necessary limit and causes major harm, the justified defender shall bear criminal responsibility.

Justifiable defense is a lawful right granted to citizens by law, and every citizen should actively use this right to fight against criminal acts, and if the use of justifiable defense to safeguard the public interest of the state, the personal and property rights of oneself and others and cause major harm beyond the necessary limit, the criminal law will reduce or waive punishment in accordance with law when sentencing.

Justifiable defense refers to the necessary defensive actions taken to protect one's own interests or the safety of the lives and property of others when subjected to unlawful infringement. When judging justifiable defense, the following criteria need to be considered:

1.Necessity: i.e. the act is necessary and action must be taken to protect one's own interests or the interests of others. If these actions are not taken, there will be even greater losses.

3.Urgency: In a limited time, the necessary measures need to be taken, and the risk cannot be waited or avoided.

Excessive defence is when a person acts in defence when he or she believes that he or she has been unlawfully assaulted, and acts of defence that clearly exceed the necessary limit, causing irreparable loss or injury. In this case, the person defending himself would be considered to be guilty of a criminal offence.

In short, legitimate defense is only a necessary act in the event of an unlawful infringement, while excessive defense may cause greater damage and may violate relevant laws and regulations. Therefore, before taking action, we must calmly weigh and judge, and if necessary, consult with professionals.

In addition to the above-mentioned three criteria of necessity, reasonableness and urgency, the following principles should be observed in justifiable defence:

1.When defending, we should be based on the principle of defensiveness, appropriately respond to the aggression of the other side, and not engage in excessive competition.

2.When defending, attention should be paid to the identity and circumstances of the counterpart, especially whether the other party has the ability or ignores the impact of the violation.

3.When defending, it is necessary to pay attention to the safety of the environment and other people to prevent others from being injured by defensive behavior.

4.The subject of defense must prove afterwards that his or her defensive act was lawful, so when taking defensive action, evidence should be retained.

If the act of self-defense exceeds the necessary limit and causes irreparable loss or injury, it will be regarded as excessive defense and will be punished by law and even corresponding criminal liability. Therefore, in the act of defense, it is not only necessary to comply with the relevant laws and regulations, but also to weigh the pros and cons according to the specific situation and environment, and take the necessary defensive action under appropriate circumstances. Na Fan.

In practice, the judgment of justifiable defense needs to take into account specific circumstances. Here are some common situations and judging criteria:

1.Being attacked: If someone suddenly attacks you, the defensive act may be justified. However, if the level of the attack is not high or if the situation is subsequently reconciled, no defence should be taken again.

2.Worsening of illness: In an emergency, an act of suspected self-defense to protect one's own life or the life of another person may be considered justified.

For example, if a person with a disease mistakenly attacks herself with a hailstone, but acts in a defensive way that is not necessary and reasonable, he or she may be considered to be overly defensive.

3.Destruction or theft of property: It may be justified to act in defence to protect property, but care must be taken not to be too strong and extensive. For example, in the case of robbery, the use of excessive force may be considered excessive defense.

In short, when judging legitimate defence, we should pay special attention to the occasion and situation, strictly follow the laws, regulations and standards to measure, and ensure that the defensive act is necessary and appropriate.

When encountering danger, in order to judge whether it is justified defense, the following aspects need to be weighed:

1.Whether the act that causes a danger is an unlawful offense. If the danger arises from an unlawful act of aggression by another person, such as violence, intimidation, assault, etc., this is a prerequisite for justifiable defence.

If the danger arises unrelated to the actions of others, but is caused only by one's own cause or accidental spinal incident, it is not justifiable defense.

2.Whether the means of defence are appropriate. Defence should be taken in moderation and not beyond what is necessary. If the means of defense are too violent and seriously injure the aggressor, this is beyond the scope of legitimate defense and is a retaliatory or negligent injury.

3.Whether the timing of the act of defence is timely. Justifiable defense should be taken immediately when danger strikes, and it is an act of emergency avoidance. If retaliation is carried out after the danger has been eliminated, this is not justified defense, and the person will bear the legal responsibility of filial piety.

4.The appropriateness of the location of the act of defence. In general, justifiable defense occurs at the time and place when the danger arises. If the act of self-defense occurs at another time and place after the danger has been eliminated, it is difficult to establish justifiable self-defense.

5.Whether the defense is stronger than necessary. The means of defense shall be reasonable, and the force of defense must not exceed the limits necessary to stop the violation. If the strength of the defense clearly exceeds the necessary limit, causing the aggressor to be heavy, this is beyond the scope of legitimate defense.

6.Are there other ways to secure it. Before acting defensively, it should be judged whether there are other safer ways to avoid the danger, and if there is a better option to act defensively but still act defensively, it may be difficult to fully justify self-defense.

Therefore, to determine whether it is justified defense, the key needs to consider factors such as the nature of the act that caused the danger, whether the defensive measures adopted were appropriate and timely, whether the location and intensity of the defense exceeded the necessary limit, and whether there were better options for avoiding danger. Only if an emergency defensive act is taken to stop the unlawful infringement within the limits reasonably necessary can it be justified defense, otherwise it is likely to bear legal responsibility.

1. What is the difference between legitimate defense and excessive defense?

1. "Justifiable defense" refers to the act taken to stop the unlawful infringement against a person who is in the process of unlawful infringement, and causes a certain amount of damage to the unlawful infringer, which is justified defense and does not bear criminal responsibility.

2. Excessive defense, refers to criminal conduct that clearly exceeds the necessary limit of defense and causes major harm, and criminal responsibility should be borne.

2. How to judge excessive defense.

According to the second paragraph of Article 234 of the Criminal Law, "whoever causes serious injury shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years", but because the act was an act of excessive self-defense, according to the second paragraph of Article 20 of the Criminal Law, "the punishment shall be reduced or exempted", so it is possible to sentence him to fixed-term imprisonment of three to five years.

Criminal responsibility shall be borne for excessive justifiable defense, but where an act of defense is taken against an ongoing committed, homicide, robbery, kidnapping, or other violent crime that seriously endangers personal safety, causing an unlawful aggressor, it is not considered to be excessive justifiable defense, and criminal responsibility is not borne.

3. What is the difference between justifiable defense and emergency avoidance?

1. The essence of the two is different: legitimate defense is a counterattack against the unjust, that is, justice vs lawlessness; Emergency hedging is the lesser of the two powers, that is, "giving up the small to protect the big".

2. The subject conditions are different: there are no special restrictions on the subject of justifiable defense, and anyone can carry it out; Emergency avoidance does not apply to persons who have specific responsibilities in their duties or business.

3. The target conditions are different: legitimate defense is only carried out against the wrongdoer himself; Emergency evacuation is aimed at a third person.

4. The causal conditions are different: the harm of justifiable defense can only be the infringement of the wrongdoer; There are many kinds of emergency avoidance, including the destruction of natural forces, animal invasion, the danger caused by human physiology and pathology, and the illegal and criminal acts committed by people.

5. Different restrictive conditions: there are no restrictive conditions for the implementation of legitimate defense, which is the legitimate rights and interests of citizens; Emergency evacuation should only be implemented as a last resort.

6. The qualifications are different: the general justifiable defense cannot clearly exceed the necessary limit and cause major losses (serious injury or death), and there are no restrictions on the implementation of special justifiable defense; The damage caused by the emergency evacuation must be less than the legitimate interest protected, otherwise it is excessive.