What is the difference between legitimate defense and mutual assault? How did the court decide?

I. Introduction

One day in December 2019, Tang Mou, who was more than sixty years old, spat randomly on the street and accidentally spat on the 19-year-old student Huang Mou, and after Tang refused to apologize, the two sides both moved their mouths and hands, resulting in Tang Mou's slight injury and Huang Mou's slight injury. In August last year, the public prosecution filed a public prosecution with the Guangzhou Liwan District People's Court on suspicion of intentional injury. Finally, after trial, the court held that Huang's conduct constituted legitimate defense, and that legitimate defense did not clearly exceed the necessary limit, and that he did not bear criminal liability according to law and should not bear civil liability.

This case still caused a certain heated discussion at that time. Everyone is discussing the difference between legitimate defense and mutual beating, and how the court determines legitimate defense. Today, the author will analyze the difference between legitimate defense and mutual beating from the perspective of law.

II. Legal Analysis:

Article 20 of the Criminal Law of the People's Republic of China stipulates: "Where an act taken to stop an unlawful infringement is taken in order to protect the State, the public interest, the person, property and other lawful rights of the person or others from ongoing unlawful infringement, and if the unlawful infringer causes harm to the wrongdoer, it is a legitimate defense and does not bear criminal responsibility, and where the legitimate defense clearly exceeds the necessary limit and causes major harm, it shall bear criminal responsibility, but shall be mitigated or exempted from punishment."

Where a person commits a defensive act in the course of committing murder, homicide, robbery, rape, kidnapping, or other violent crimes that seriously endanger personal safety, causing the death or injury of an unlawful infringer, it is not excessive defense and does not bear criminal responsibility. ”

As can be seen from the above provisions, the formation of legitimate defence can be summarized as the following conditions:

(1) It must be implemented for the purpose of protecting the State, the public interest, the personal, property and other rights of oneself or others from unlawful infringement.

2. There must be unlawful infringement. The so-called "unlawful infringement" refers to the infringement of a certain right or interest that is expressly prohibited by law, including both criminal acts and illegal infringements.

3. It must be an ongoing wrongful infringement. The purpose of legitimate defence is to stop the wrongful infringement and to avoid the occurrence of harmful results, so the wrongful infringement must be ongoing, not yet started, or has been committed, or the perpetrator has indeed stopped automatically. Otherwise, it is an unwell defense and should bear criminal responsibility.

4. It must be carried out against the wrongdoer himself. That is, an act of legitimate defence cannot cause harm to a third party (including the family of a wrongdoer) who has not committed the wrongful infringement.

5. It must not cause significant damage by obviously exceeding the necessary limit. Legitimate defense is a lawful act beneficial to society and should be subject to certain limits, that is, legitimate defense should be limited to a sufficient amount to stop the unlawful infringement.

Fighting each other specifically refers to the subjective intention of both parties or parties to unlawfully infringe upon each other, and objectively all of them have committed unlawful infringement on each other. It can be seen that the determination of mutual beatings is not legitimate defense, and the key lies in whether the perpetrator subjectively has the intention of legitimate defense.

Third, the mutual transformation of legitimate defense and mutual beating

The paradigm of legitimate defence transforming into mutual assault is the issue of "pursuit". In this case, the defender continues to beat the other party after the wrongdoer has stopped or withdrawn from the infringement and turned away, in which case the nature of the defender's conduct has changed from the original defender to the perpetrator of the other party. In this case, it is very likely that the court will judge it as excessive defense or even mutual beating.

The typical example of mutual beatings transformed into legitimate defense is the behavior of "group fighting". Both parties or parties subjectively have the intent to unlawfully infringe, and objectively have committed unlawful infringement of the other party, and at this time, it is still determined that the act of beating each other is not legitimate defense. However, in such a case, after one party has ceased or withdrawn from the mutual beating, the other party continues to beat the other party, in which case the nature of the act has changed from the original mutual beating to the perpetrator of the other party, and the perpetrator has committed a defensive act against the perpetrator in the case of last resort, which shall be regarded as legitimate defense.

A common misconception in life is that "to fight each other is to beat each other up." Not all mutual attacks are "mutual beatings"; not the party who is injured, or seriously injured or killed by mutual action is a victim, and the party who seems to suffer a loss may also be the infringer; sometimes, the party involved in the "mutual beating" is likely to be in legitimate defense and other strange situations, putting pressure on the judge.

Combined with the above text, I believe that everyone can also realize that in judicial practice, the determination of legitimate defense has always been a difficult thing to grasp. When the defender is illegally infringed by the outside world, even if the normal counterattack of self-protection is stimulated by emotions such as pain, fear, and anger, it is inevitable that it will transform into an attempt to explode the defense of the opposite side and even beat each other. After all, people are emotional animals, you can't ask an ordinary person to calmly think about when to shoot and when you must stop when you face the threat of illegal infringement. It is precisely for this reason that it is more difficult to establish a standard of legitimate defense in practice, after all, it is better to fight, and the purpose has changed from protecting oneself to overthrowing the opposite side, and it is also expected that legitimate defense will be misinterpreted into mutual beatings.

(Author: Beijing Jingshi (Chongqing) Law Firm, Guo Yuanjiang, Tan Kaiwen, please indicate the source when reprinting)