On The Condition Of The Military Personal Establishment Of Urgent Defense

There is no specific stipulation in China’s criminal law as to whether or not the justifiable defense of a citizen as stipulated in the criminal law can be applied in an event where the military interests or legal interests relating to the duties of the military personal are being infringed, such as in the circumstances of breaching the order of military administration, stealing military secret, uprising, mutiny or terrorist attack, therefore the military personal who aim at protecting specific interests, are compelled to take defensive actions against the unlawful infringers committing such infringement and hence resulting the injury or death of such unlawful infringers. In the specific law or internal orders or rules of the army, the military personal are required to stop unlawful infringement and be responsible for defensive actions taken. However, this has not expressly pointed out whether they are subject to lighter penalty or exempted from the punishment in case of causing injury or death of such unlawful infringers. Due to the unspecific stipulation, the military personal are concerned about the possible criminal liabilities to be borne in case of an improper defense and suspect of the legitimacy in using weapons, which does not benefit their performance of duties and protection of military interests and public security.The writer holds that since the duties assumed by the military personal are different, the conditions for the establishment of their defensive actions are different with the justifiable defense conducted by a citizen. If we regard the former one as equal to the latter one, it essentially means confusion between public power and private right, making the military personal unable to understand the legal nature of their defensive actions correctly, and consequently, it does not benefit the protection of military interests and public security. In order to differentiate it from the justifiable defense and special defense of a citizen as contained in the criminal law, drawing on A Comparative Study on Military Criminal Laws of both China and Foreign Countries, compiled by Xia Yong and Xu Gao and Armed Forces Criminal Act being executed in Taiwan of China, the writer has collectively referred to the defensive actions taken by the military personal under emergencies as “urgent defense”. Urgent defense and justifiable defense are all emergent actions that bear the feature of preventing criminal acts. Both the differences and similarities can be found between the two. The conditions for the establishment of justifiable defense can be referred to but the content should be different when studying the conditions for the establishment of urgent defense.This paper mainly adopts two research methods, which are the empirical and comparative analysis. Starting from the status quo of the legislation of both home and abroad on urgent defensive actions taken by the military personal, it has combed through the stipulations in China on urgent defense, the circumstances in foreign countries where the urgent defense is allowed to be taken and its legal evaluations. Furthermore, it has analyzed typical cases in practice in which the military interests and public security has been infringed unlawfully. By comparing different cases, it attempts to find out the theoretical basis for the military personal to assume no criminal responsibility for urgent defensive actions taken against those unlawful infringers. The writer argues that the conditions for the establishment of urgent defense shall be comprised of 5 parts, including the cause, time, object, subjective and limit conditions. By comparing differences and similarities between criminal theories from both home and abroad on the conditions for the establishment of justifiable defense, it intends to find or conclude the viewpoints that are applicable to the conditions for the establishment of urgent defense by the military personal, thus making it possible for such establishment conditions to fit to the legal issues encountered by the military personal when preventing unlawful infringements.