The difference between emergency avoidance and justifiable defense

According to Article 17 of the Criminal Law of the People's Republic of China, justifiable defense refers to an act of defense that causes a certain amount of damage to the wrongdoer in order to protect the public interest, the person or other rights of oneself or others from ongoing unlawful infringement.

The following four conditions must be met at the same time:

First, there must be an unlawful violation.

Second, it must be an ongoing unlawful violation.

Thirdly, it must be defended against the wrongdoer himself.

Fourthly, defensive behaviour must not exceed the limits necessary.

Paragraph 1 of Article 18 of the Criminal Law of the People's Republic of China stipulates: "In order to protect the public interest, the person or the personal and other rights of oneself or others from the danger that is occurring, the act of emergency avoidance taken as a last resort shall not bear criminal responsibility." This provision is not only the concept of emergency avoidance, but also indicates the characteristics of emergency avoidance behavior.

The following four conditions must be met at the same time:

First, there must be a dangerous threat to the public interest, the personal and other rights of oneself or others.

Second, it must be an ongoing danger.

Thirdly, it must be taken as a last resort when there is no other way to eliminate the danger.

Fourth, the act of emergency avoidance must not exceed the necessary limit (the necessary limit mentioned here is determined according to the characteristics of emergency avoidance and the purpose of implementing emergency avoidance). Specifically, the damage caused by emergency avoidance must be less and less than the damage avoided. )

4. The target of the behavior is different.

Justifiable defense is carried out against people (unlawful aggressors), and emergency avoidance is carried out on dangerous things and things that actually exist.

The difference between emergency evacuation and justifiable defense is as follows:

1 dangerous ** different. The danger of justifiable self-defense** is the unlawful infringement of man; The danger of rushing to avoid danger is more extensive, which can be illegal infringement, natural disasters and animal invasions.

2. Emergency evacuation must be out of necessity, and justifiable defense does not require this.

3.The requirements for the subject are different, and the emergency evacuation requires that the subject cannot have a specific identity (such as a police officer, military personnel or firefighter, etc.). And justifiable defense does not have such a requirement. Everyone has the right to legitimate defence.

4.Depending on the object of implementation, justifiable defense can only be carried out against the wrongdoer, while emergency avoidance must be carried out against a third party.

Legal basis] Article 21 of the Criminal Law provides that in order to protect the state, the public interest, the person, property and other rights of oneself or others from the danger that is occurring, the person who has to take emergency measures to avoid danger and cause damage, shall not bear criminal responsibility. Where emergency evacuation exceeds the necessary limit and causes undue harm, criminal responsibility shall be borne, but punishment shall be commuted or waived. The provisions of the first paragraph concerning the avoidance of personal danger do not apply to persons who have specific responsibilities in their duties or operations.

The harm in justifiable defense can only be the illegal infringement carried out by people, and the harm in emergency avoidance is not limited to the illegal infringement of people, but also the forces of nature, the invasion of animals, etc.

2. The object to which the behavior is directed is different:Justifiable defense can only be exercised against the wrongdoer himself, and cannot harm the interests of other people who did not participate in the unlawful infringement, and emergency evacuation can only harm the interests of a third party who has nothing to do with the occurrence of the danger.

3. The restrictions on behavior are different:There is no such requirement as to require that the perpetrator act in self-defence only as a last resort and as the only means of eliminating the danger.

4. The limitation of the subject is different:Justifiable defense generally has no special requirements for defenders, and as long as the conditions for justifiable defense are met, emergency avoidance can be implemented, and it does not apply to persons who have specific responsibilities in their duties or operations to avoid personal danger.

5. The limits of the degree of damage are different:The damage caused by justifiable defense is allowed to be equal to or greater than the damage that may be caused by the unlawful infringement, and the legitimate rights and interests of the emergency refuge must be less than the legitimate rights and interests protected.

First, the harm is different. The harm of justifiable self-defense** is limited to the unlawful infringement of a person; The danger of emergency avoidance** can be not only the illegal infringement of people, but also (even in most cases) natural disasters, animal invasions, and human physiological and pathological causes.

Second, the object of the act is different. Justifiable defense can only harm the interests of the offender who does not turn a blind eye to the law, while emergency avoidance can damage the legitimate rights and interests of a third party.

Third, the limits of behavior are different. The implementation of justifiable defense is sufficient as long as there is an unlawful infringement of the bank, regardless of whether the defender has the conditions to stop the unlawful infringement by means such as fleeing, calling the police, or dissuading, and it is not required to be compelled to do so; Emergency evacuation can only be carried out as a last resort if there is no other way to eliminate the danger.

Fourth, the limits of behavior are different. The necessary limit of justifiable defence is necessary to stop the unlawful offense, as long as the damage caused and the damage that may be caused by the unlawful offense are not too disproportionate, so that the damage caused by justifiable defence may be less than or greater than the damage that may be caused by the unlawful offense; The damage caused by emergency avoidance can only be less than the damage avoided, and cannot be equal to or even greater than the damage avoided.

Fifth, the limitation of the subject is different. Justifiable defense is the legal right of every citizen, and it is the legal obligation of the people's police when performing their duties; Emergency avoidance does not apply to people who have specific responsibilities in their duties or business.