Study On “Excessive” Special Defense Under Chinese Criminal Law

As “Yu Haiming legal defense case” has been selected as one of the twelfth batch of guiding cases of the Supreme Procuratorate,the judicial organs tend to adopt “the right of boundless defense” when interpreting Article 20,Paragraph 3,of the Chinese Criminal Law.“The right of boundless defense” helps release people's feeling of justice,but it also exposes problems.According to the view of the Supreme Procuratorate,as long as the unlawful infringement constitutes “assault” and has caused “imminent danger” that seriously endangers personal safety,even if no serious harmful consequences have occurred,it will not prevent the establishment of a legal defense.The “Lijiang Anti-Killing Case” has raised the question of whether the defenders can take the initiative to open the door to face the imminent danger outside the courtyard.According to the Supreme Procuratorate's viewpoint expressed in the guiding case,the defender Tang Xue in this case constitutes a legal defense,but this result is obviously unreasonable.The solution to this problem lies in rethinking the possibility of special defense being “excessive”.Therefore,this article starts with the analysis of the “Lijiang Anti-Killing Case” and conducts research on the “excessive” problem of special defense in Chinese Criminal Law.The article tries to expand the argument through reviewing and analyzing the viewpoint of whether the special defense is “excessive”,analyzing the relationship between provisions of general defense and special defense,discussing the value of “excessive” special defense under Chinese Criminal Law,and proposing the method to recognize “excessive” situations.By the foregoing argument,the article aims to solve the current relevant judicial difficulties.The structure of this article is as follows:The first part briefly outlines the domestic and foreign perspectives of whether special defense could be “excessive”.The domestic academic circle has different views on whether special defense could be “excessive”: The view of “the right of boundless defense" is based on the literal meaning of the law and the legislative purpose of special defense,but it lacks more sufficient reasons.The view of “the excessive defense plus indicative clause” has plenty of supporters,but this view does not consider the difference between the limits of general defense and special defense.The view of “excessive defense” occurred too early and therefore lacked further research.Comparative legal analysis shows that although Germany,Japan,and the United States did not set up special defense clauses in their criminal laws,they all provided special defense systems in different forms.Moreover,special defense could be “excessive” in the legal systems of Japan and the United States.The second part analyzes the relationship between general and special defense provisions in China's Criminal Law.By analyzing the legislation process of special defense clauses,summarizing the legislative purpose of the special defense system,and on the premise that special defense is “excessive”,analyzing the difference between the general and special defense “excessive” standards,the article tries to clarify the relationship between paragraph 1 and 3 under Article 20.This article considers that paragraph 3 is not the indicative clause of paragraph 1,which means the provisions of special defense and general defense are of exceptional relationships.The reasons are as follows: firstly,the “excessive” standard of special defense is lower than that of general defense;secondly,if special defense is the indicative clause of paragraph 1,the legislator does not need to repeatedly manipulate the prerequisites of special defense,but only need to slightly prescribe something in paragraph 3 instead.The two paragraphs are of exceptional relationships.However,the provision of special defense still needs to abide by the guiding ideology of general defense.The third part discusses the value of “excessive” special defense under Chinese Criminal Law.This article argues that the view of “excessive” special defense should be adopted for the following reasons.Firstly,the Supreme Procuratorate included the “imminent danger” caused by the murders as a prerequisite for special defense.Therefore,cases where special defense should not be included in the special defense category,will also be deemed as special defense.However,interpreting “imminent danger” directly by language cannot avoid the limitation of language,so that the concept of “imminent danger” will remain abstract and bring about confusion in application.If special defense is allowed to be “excessive”,it can solve the problem of “imminent danger” that is difficult to grasp.Secondly,“the right of boundless defense” is not conducive to the reduction of social instability factors,and therefore is not conducive to the realization of the criminal law task of maintaining order.At the same time,the retribution function of “the right of boundless defense” is greater than the preventive function,which will promote social violence.Thirdly,the view of “excessive defense” does not conflict with the law,and can take care of justice in judicial cases.Fourthly,when cases are different,the facts of the case also change.So the judgment based on the view of “excessive defense” is more likely to meet the social public's sense of justice.The fourth part proposes the standards of how to recognize “excessive” situations in special defense from the perspectives of balance standard,subjective standard and objective standard.The fourth part also suggests that different types of special defense cases should be ended at different stages in the criminal procedure.The balance standard means that it is necessary to measure the legal benefits of the violation and the damage caused by the defense,but the judgment should not be based on simply comparing the two factors.The subjective standard means that if it is impossible to exclude a special defender from performing an attack on purpose,the defender may establish a special defense that is excessive.The objective standard refers to the conclusion of “the exclusion of special defenders from performing an attack on purpose”,which should be based on factual factors such as the comparison of the lethality of means(such as weapons),environmental conditions,physical conditions,and other feasible rescue measures.Only when a special defense case meets the requirement of the above three standards,can the special defense in this case be deemed to be “excessive”.