Abstract:

In September 2020, the Supreme People’s Court, the Supreme People’s Procuratorate, and the Ministry of Public Security jointly issued the “Guiding Opinions on Lawfully Applying the System of Justifiable Defense” (hereinafter referred to as the “Guiding Opinions”), marking a new stage in the development of the justifiable defense system. Through observation of practical cases, the Guiding Opinions have shown new value in handling issues such as “defense provocation” and “unlawful infringement.” However, numerous deficiencies persist, including “muddying the waters” judgments, generalized determination of mutual affray, and harsh determination of excessive defense. Substantive law and procedural law should develop in parallel. The scientific and rational construction of the justifiable defense system also requires attention to establishing procedural protocols for cases involving justifiable defense, thereby better serving criminal policy in the new era.

Keywords: Justifiable defense; unlawful infringement; mutual affray; evidence-based adjudication; excessive defense

I. Raising the Issue

For a long time, the justifiable defense system has faced restricted application in judicial practice. Most justifiable defense cases have been deemed excessive defense, or the defensive nature of the conduct has been completely denied, treated instead as intentional crimes. To enable judicial personnel to accurately apply the justifiable defense system in practice, and also to protect citizens’ positive acts of courage and uphold citizens’ right to justifiable defense, in September 2020, the Supreme People’s Court, the Supreme People’s Procuratorate, and the Ministry of Public Security jointly issued the “Guiding Opinions on Lawfully Applying the System of Justifiable Defense” (hereinafter referred to as the “Guiding Opinions”), aiming to expand justifiable defense and rectify the confusion in its determination in practice. However, in the more than two years since the Guiding Opinions came into effect, both academia and judicial practice have lacked concentrated review and analysis of relevant cases, resulting in a lack of comprehensive evaluation of the implementation status of the Guiding Opinions. Consequently, it is difficult to scientifically identify the problems in current judicial practice and the direction or path for future improvement. Based on this, this article, titled “New Practical Observations,” aims to evaluate the application of the Guiding Opinions from the perspective of practical cases for the reference of readers, hoping to spark further discussion.

The author conducted cross-referencing searches on the PKULaw platform and the China Judgments Online platform on February 12, 2023 (with prior searches on January 1, 2023, and February 1, 2023; February 12 being the final search date), retrieving a total of 64 relevant criminal cases applying the Guiding Opinions. After逐一 reading, analysis, and comparison, 11 cases unrelated to the application of the justifiable defense system were excluded, yielding a final effective research sample of 53 cases.

II. Pleasing Aspects of Practical Observation

The promulgation and implementation of the Guiding Opinions have indeed positively influenced the application of the justifiable defense system. With clear guidance available, judges have handled relevant cases more appropriately when determining facts and applying the law, thereby promoting the unity of legal and social effects and aligning with the public’s sense of fairness and justice. Since the Guiding Opinions contain numerous provisions and there are many positive aspects, it is not possible to describe them all here. The following illustrates several typical issues:

For example, regarding the handling of “defense provocation,” judicial precedents before the implementation of the Guiding Opinions showed unclear basic logic and excessive judicial discretion. Most discussions were still largely confined to theoretical doctrines. However, Article 8 of the Guiding Opinions provides: “Defense provocation, where one intentionally provokes the other party through words, actions, etc., to attack oneself before counterattacking, shall not be regarded as a defensive act.” This clearly states that risks self-induced by the victim through defense provocation do not fall within the semantic scope of “unlawful infringement.” In the criminal judgment (2020) Gui 0621 Xing Chu No. 135, the Shangsi County People’s Court of Guangxi Zhuang Autonomous Region held that before the incident in this case, the defendant Su Xingfeng and the victim Fang had a dispute over land use rights, but the disputed land was not located in Fang’s sugarcane field. There was no evidence proving that Fang’s sugarcane field was disputed with others. Shortly after the dispute with Fang, Su provoked Fang by using an oxcart to pull sugarcane through Fang’s already-ridged sugarcane field. During Fang’s attempt to stop him, Su provoked Fang to attack him before counterattacking. This did not constitute justifiable defense.

For another example, regarding the determination of “unlawful infringement,” in judicial practice before the implementation of the Guiding Opinions, some judges even believed that justifiable defense could only be exercised when facing violent personal crimes. Such unfounded precedents negatively impacted public opinion and contradicted the original intent of establishing the justifiable defense provision in China’s Criminal Law. However, Article 5 of the Guiding Opinions provides that the prerequisite for justifiable defense is the existence of unlawful infringement. Unlawful infringement includes not only acts infringing upon the rights to life and health but also acts infringing upon rights such as personal freedom and public and private property; it includes both criminal acts and illegal acts. The concept of “unlawful infringement” should not be improperly restricted to violent infringement or criminal acts. Thus, by clearly defining the meaning of “unlawful infringement” and including illegal acts as a prerequisite for justifiable defense, the Guiding Opinions have significantly “liberated” the justifiable defense provision at the front end of judicial application, to some extent encouraging the public to fight against illegal and criminal activities. In the criminal ruling (2021) Gan 01 Xing Zhong No. 21, the Nanchang Intermediate People’s Court of Jiangxi Province held that unlawful infringement includes not only the infringement of criminal acts but also the infringement of general illegal acts. Jiang’s act of photographing Yang 1 and Wang Hongjian constituted an infringement of others’ personality rights. Yang 1’s act of stopping Jiang from photographing and knocking down his phone was a possible reaction of an ordinary person in a similar situation. Jiang should have immediately terminated this unlawful act. However, when Yang 1 knocked down his phone to stop him from taking photos, Jiang attacked Yang 1. Jiang’s prior act of assaulting Wang Hongjian and subsequent act of assaulting Yang 1 were illegal acts infringing upon others’ personal rights, meeting the prerequisite elements for justifiable defense.

III. Concerning Aspects of Practical Observation

However, alongside the positive aspects brought by the implementation of the Guiding Opinions, attention must also be paid to problems left unresolved from before the Guiding Opinions’ promulgation, as well as new problems introduced by the Guiding Opinions themselves. From a developmental perspective, faced with these old and new issues, the Guiding Opinions are merely a drop in the ocean. The practice of the spirit of the rule of law that “justice does not yield to injustice” still has a long way to go. The author discusses below using issues identified in the sample cases:

(I) The determination of “unlawful infringement” still exhibits subjective tendencies, lacking evidence-based adjudication thinking, and the resulting disputes cannot be underestimated

To grasp the essence of “unlawful infringement,” the principle of unity of subjective and objective elements should be followed. As stated in Article 6 of the Guiding Opinions, objectively, justifiable defense must be against an ongoing unlawful infringement. If the unlawful infringement has formed a real and imminent danger, it should be deemed to have commenced; if the unlawful infringement is temporarily interrupted or temporarily stopped, but there is still a real possibility of the infringer continuing the infringement, it should be deemed to be ongoing. Subjectively, whether the unlawful infringement has commenced or ended should be determined based on the situation in which the defender was at the time of defense, in accordance with the general perception of the public, and a reasonable judgment should be made; the defender must not be held to an overly strict standard. However, how to concretize the “real and imminent danger” in the context of the defense scenario in individual cases remains highly controversial.

Regarding the scenario where the victim actively threw a glass ashtray at the actor but did not actually hit him, the Yingde City People’s Court of Guangdong Province, in its criminal judgment (2021) Yue 1881 Xing Chu No. 109, held that the ashtray did not hit or injure anyone and could not be deemed as obviously excessive means, nor did it pose a real and imminent danger to the two defendants. However, the court did not detail the positions of the parties, the weight and speed of the ashtray, or the objective consequences of the ashtray hitting elsewhere. It did not carefully consider the potential consequences of the actor being hit by the glass ashtray, which was somewhat biased.

Regarding the scenario where the victim actively swung a sickle to chop a fence and brandished it towards people, the Yiyang Intermediate People’s Court of Hunan Province, in its criminal ruling (2022) Xiang 09 Xing Zhong No. 216, held that during the altercation, although the victim had acts such as swinging a sickle to chop the fence and brandishing it towards people, these acts did not touch the person and were clearly fault acts occurring in a general quarrel. Although they should be negatively evaluated, they were different from aggressive unlawful infringement acts aimed at causing physical harm to others. Furthermore, the fence in question was temporarily built on public land using stones, branches, and other materials, having low economic value, and should also be distinguished from generally understood public or private property. Therefore, there was no unlawful infringement caused by a crime or illegal act in this case, and the prerequisite for justifiable defense did not exist. When the victim actively brandished a potentially lethal weapon and the actor’s property was indeed subject to actual infringement, the judge “calmly” considered the victim’s actions as merely irrational behavior during a general quarrel, and the property damage was also minor. If this reasoning prevails, does it not fail to consider the defense scenario? Is it demanding too much of the defender? The judge would likely struggle to answer these questions.

In the scenario where the victim first vandalized property and actively pursued the actor, the Wuji County People’s Court of Hebei Province, in its criminal judgment (2020) Ji 0130 Xing Chu No. 257, held that when Wei returned, he did not carry any weapons or tools. Therefore, when Wei returned to Qin’s location, Wei did not pose an imminent threat to Qin’s personal safety. It can be seen that the court considered the carrying of weapons as an important factor in determining unlawful infringement, neglecting other factors. Moreover, when the victim had already damaged the defendant’s property and pursued the defendant, the victim themselves might have constituted the illegal act of picking quarrels and provoking trouble. However, the judge in this case did not strictly follow the relevant provisions of the Guiding Opinions and implicitly restricted the scope of the concept of “unlawful infringement.” Of course, besides implicitly restricting the scope of the concept of unlawful infringement, even against the backdrop of the Guiding Opinions, some courts have explicitly restricted the scope of the unlawful infringement concept. In its criminal judgment (2020) Ji 2424 Xing Chu No. 223, the Wangqing County People’s Court of Jilin Province held that the victim Yuan snatched the defendant Hu Naichen’s bicycle. Hearing Hu cursing him, Yuan kicked Hu in the right buttock and waist area, punched Hu’s head, and kicked Hu’s body, knocking Hu to the ground. Books and a pencil case from Hu’s backpack scattered on the ground. Hu saw a pencil knife in the pencil case and picked it up, attempting to get up. Yuan came over to hit Hu, and Hu raised his right hand, stabbing Yuan in the body. Although the victim Yuan had some fault in the origin of the case, his conduct did not yet constitute a “major fault in the criminal law sense.” Hu Naichen’s act was not a defensive act to stop unlawful infringement when his legitimate rights and interests were being infringed upon, but an active harmful act, meeting the constitutive elements of the crime of intentional injury. From the perspective of the imminence of infringement, it did not meet the constitutive elements of justifiable defense or even excessive defense. The victim had engaged in such a continuous series of illegal acts with obviously excessive means and had a major fault in the origin of the case, but the court introduced a concept of “major fault in the criminal law sense,” disregarding the precise meaning of unlawful infringement in the Guiding Opinions. The reasoning in this case is unconvincing.

(II) The “muddying the waters” adjudication mindset remains relatively prominent, and judgments that fail to distinguish between right and wrong, and fault and no-fault, hinder the precise implementation of the justifiable defense system

Article 3 of the Guiding Opinions explicitly requires that, in handling cases, attention must be paid to ascertaining the causes and consequences and distinguishing right from wrong to ensure that case handling is legally grounded, reasonably justified, and emotionally acceptable, aligning with the public’s concept of fairness and justice. Article 1 of the Guiding Opinions states at the outset that the erroneous practice of “whoever makes a scene is in the right” or “whoever is dead or injured is in the right” must be effectively prevented. This requires that when handling cases involving justifiable defense, the people’s court must adhere to the principle of impartial adjudication. The practice of “muddying the waters” by “giving each side some blame” should be completely prohibited. However, in practice, due to various factors such as the judicial system itself, case assessment, and social impact, disassembling each case on the principles of law and reason may be costly for judges themselves. However, one of the functions of establishing clear substantive legal rules is to reduce “empty” procedural loops, promote substantive adjudication of criminal cases, and尽可能 reduce or systematize and objectify factors affecting judicial discretion. It can be seen that the Guiding Opinions do adhere to this principle, but the actual effect of their application needs continuous attention and reflection.

For example, the Hongqi District People’s Court of Xinxiang City, Henan Province, in its criminal judgment (2020) Yu 0702 Xing Chu No. 352, held that the defendant’s confession and defense, the victim’s statement, and the on-site surveillance video confirmed that the defendant Gao Yongxiang and the victim Geng were grappling with each other during the conflict. During this process, Gao pushed, kicked, and sat on Geng, committing harmful acts. Gao lacked defensive intent during the grappling. Therefore, the defense counsel’s opinion that the defendant’s conduct constituted justifiable defense was not adopted. In this case, the court did not detail the ins and outs of the incident, i.e., the cause of the grappling. The occurrence of a grappling inevitably involves a process of preparation, execution, and conclusion. There must also be an order of events for such an intense act. If these questions remain unanswered, it can be seen that the judge in this case also failed to fulfill the adjudicative duty of distinguishing right from wrong and ascertaining the causes and consequences of the case, which is highly questionable.

For another example, the Dantu District People’s Court of Zhenjiang City, Jiangsu Province, in its criminal judgment (2020) Su 1112 Xing Chu No. 243, held that in this case, the families of Liu Guoqiang and Liu had repeatedly quarreled over daily life disputes. On the day of the incident, Zhu came to Liu Guoqiang’s home to “demand an explanation.” Liu Guoqiang and Zhu, Liu engaged in a scuffle. After breaking free, Liu Guoqiang took a wooden stick from behind the room door and struck Liu and Zhu. Liu Guoqiang and Liu are biological brothers. Zhu, the sister-in-law, came to the door at noon to “demand an explanation” due to daily trivialities. This act of “illegal intrusion into a residence” was clearly minor. The mutual scuffling was clearly a minor violent act occurring during a general quarrel. However, the defendant, being “angry,” chose to strike Liu and Zhu on the head with a wooden stick taken from the room. Liu Guoqiang’s so-called “defensive” act was significantly and grossly disproportionate to the harmful act of others. For minor violence occurring between relatives, other stopping measures should be prioritized, rather than directly resorting to counterattacks causing death or injury. This aligns more with the public’s sense of fairness and justice and fits with China’s cultural traditions. In this case, because it occurred between relatives, the court deduced through the concept of fairness, justice, and cultural tradition that the actor had a certain duty to retreat and that the application of justifiable defense should maintain modesty. However, the issue lies in the fact that in the era of rule of law, rights and obligations between relatives should also adhere to the rule of law first. It should not be that because it occurred between relatives, the distinction between right and wrong can be blurred. In this case, the two parties had deep-seated conflicts. The victim’s side first adopted excessive measures by throwing a flowerpot at the defendant. During the fight, two people were always attacking the one defendant. If the rule of law is not used to clarify this, the positive effects generated in today’s society will likely be limited.

For yet another example, the Xin County People’s Court of Henan Province, in its criminal judgment (2021) Yu 1523 Xing Chu No. 98, held that the defendant and the victim failed to calmly handle neighborhood trivial matters, leading to mutual scuffling and fighting. Therefore, the defendant’s conduct could not be deemed justifiable defense, and the defense counsel’s opinion on justifiable defense was not adopted. Considering that in this case, the victim had a major fault in the origin of the fighting, and during the fight, the defendant also suffered the consequence of a broken front tooth. Moreover, the defendant promptly and actively called the police after the incident, seeking handling by authorities, all of which demonstrated that the defendant had low subjective malignancy. In this case, the court directly attributed the final criminal outcome to both parties’ failure to calmly handle neighborhood trivialities. However, it did not clarify who struck first or escalated the incident, what the specific neighborhood trivialities were, or who was at fault. The judge seemed to stand from a “God’s perspective” to avoid relevant issues. This will certainly hinder the justifiable defense system from playing a positive social role and may undermine judicial justice. (III) The identification of mutual affray versus justifiable defense remains blurred, and cases correctly distinguishing between the two are relatively rare

Stripping away other constituent elements of justifiable defense, from an objective behavioral perspective, the defender and the infringer are indeed mutually infringing. Without careful differentiation of subjective and objective constituent elements, it is easy to confuse this with affray. In this regard, Article 9 of the Guiding Opinions provides for accurately distinguishing between defensive acts and mutual affray. Defensive acts and mutual affray share similar appearances. The key to accurately distinguishing between them lies in adhering to the principle of unity of subjective and objective elements, comprehensively considering objective circumstances such as the origin of the incident, whether there was fault in escalating the conflict, whether weapons were used or prepared, whether obviously disproportionate violence was employed, and whether others were involved in the fight, to accurately determine the actor’s subjective intent and the nature of the act. It can be seen that the drafters of the Guiding Opinions made a conscientious effort to distinguish between affray and justifiable defense, ultimately adopting a comprehensive judgment approach, adhering to a dynamic mindset to objectively weigh relevant factors and arrive at an appropriate judgment. However, in specific judicial application, it must be acknowledged that mutual affray and justifiable defense often go hand in hand, and the difficulty of distinguishing between the two is a pain point in the current justifiable defense system.

For example, the Minquan County People’s Court of Henan Province, in its criminal judgment (2020) Yu 1421 Xing Chu No. 468, held that the defendant Tian Guoqi and his defense counsel argued that the defendant’s conduct was justifiable defense. Upon investigation, the defendant Tian Guoqi injured the victim Sun 6 during a mutual affray, which does not constitute a justifiable defense scenario. Therefore, the court did not adopt the defense opinions of the defendant and his counsel. The author questions this judgment. Considering the facts of this case: the defendant Tian Guoqi and Sun 1 were playing cards after drinking when a dispute arose between Tian and Sun 1, leading to a scuffle. They were separated and left separately. At 13:00 and 18:00 on the same day, Sun 1’s wife Chen, daughter Sun 3, aunt Sun 2, son Sun 6, and mother Huang successively came to the defendant Tian Guoqi’s home. During arguments with Tian, a scuffle broke out. During the scuffle, both sides were injured. The victim’s side had up to six people and illegally entered the defendant’s residence twice, assaulting Tian’s pregnant daughter inside the home. Only then did the defendant counterattack. Considering the origin of the incident (merely a common dispute during card playing, a typical civil dispute), the location of the fight (the defendant’s home, illegally entered twice by the victim’s side, raised questions about whether multiple people attacking one person in someone’s home constituted mutual affray), the numerical disparity (six against one), and who first adopted excessive means (the victim’s side struck first), the factual basis for the judge’s determination of mutual affray is completely absent. This judgment may be a miscarriage of justice worthy of attention.

For another example, the Yuhua District People’s Court of Changsha City, Hunan Province, in its criminal judgment (2021) Xiang 0111 Xing Chu No. 1493, held that this case involved mutual affray between the parties over daily trivial matters. Neither party could exercise restraint. The victim had some fault in the origin of the case but did not engage in obviously excessive means. The defendant Zhou Shimei also did not try to avoid the occurrence and escalation of the conflict. According to Article 9 of the Guiding Opinions, it did not meet the criteria for justifiable defense, and thus the opinion was not adopted. However, according to the case facts, Shen was kicked out by staff. The defendant was watching nearby. Shen then beat a gong outside. The defendant and other owners were chatting under the corridor of Building 6. Shen cursed the defendant and followed her. The defendant took out her phone to record evidence. Shen struck her chest with a gong and knocked her phone to the ground. The defendant grabbed Shen’s hair and pulled it aside. They then grabbed each other’s hair for about ten to twenty seconds before being pulled apart by bystanders. Subsequently, Shen hit herself with a shoe. The defendant took the shoe and hit Shen’s head twice. They again grabbed each other’s hair. It can be seen that the incident arose from Shen’s major fault. Shen struck the defendant’s chest and repeatedly grabbed her hair. If strictly applied, Article 9 of the Guiding Opinions would not support the court’s reasoning. Furthermore, it should be noted that the victim Shen was creating a disturbance outside the owners’ meeting, attempting to disrupt the normal owners’ meeting to vent her dissatisfaction. The victim herself did not seek legitimate channels for rights relief, and this conduct is itself culpable and inconsistent with socialist core values.

However, in the author’s search, some typical judgments with thorough reasoning and accurate distinction between mutual affray and justifiable defense were still found. The Jinhua Intermediate People’s Court of Zhejiang Province, in its criminal ruling (2021) Zhe 07 Xing Zhong No. 30, held that, based on the surveillance video and witness testimony in this case, Xu Jingxiang first pushed Zhou 1, leading to mutual affray. After Zhou 1 fell to the ground, someone rushed towards Xu Jingxiang but was immediately pushed to the ground. Assuming this person was He, and Xu stabbed He at this time, from the perspective of the origin, Xu had some fault and struck first. The entire process from the start of the mutual affray with Zhou 1 to the stabbing of He was continuous and rapid. Xu’s assault was proactive and intense, thus not constituting justifiable defense. This judgment combined evidence to determine the origin of the incident and who first adopted escalating excessive means, and examined the characteristics of the attacking手段, thereby concluding that mutual affray existed and justifiable defense was not established. The Tianjin First Intermediate People’s Court, in its criminal judgment (2021) Jin 01 Xing Zhong No. 120, held that, first, this case was triggered by Liu’s unprovoked provocation. From the perspective of the origin, Liu first criticized Shang Diangang, creating conflict, and then actively called Shang out, directly leading to the incident. Second, Liu first committed an unlawful infringement against Shang. Liu first slapped Shang, then kicked him. Only then did Shang kick Liu back. Liu first struck the other party. Although the intensity was limited, he first gave Shang an insulting slap and then continued to kick him when Shang did not retaliate. Liu provoked the incident and then repeatedly struck the other person. His conduct clearly constituted an ongoing unlawful infringement. It can be seen that the judge in this case accurately distinguished between mutual affray and justifiable defense based on factors such as the origin of the incident and the escalation of the conflict, with relatively comprehensive reasoning worthy of praise.

(IV) The judgment of “clearly exceeding the necessary limits and causing major harm” is prone to inaccuracy. The “result-oriented” approach makes the determination of excessive defense still relatively difficult

For a long period before the implementation of the Guiding Opinions, there was no clear standard for determining excessive defense. This was also one of the important reasons for the low number of excessive defense determinations in judicial practice. To activate the justifiable defense provision, concretizing the judgment of excessive defense was one possible path. According to Articles 11, 12, and 13 of the Guiding Opinions, determining excessive defense requires the simultaneous existence of two conditions: “clearly exceeding the necessary limits” and “causing major harm,” and neither condition should be neglected. Whether the defense “clearly exceeds the necessary limits” should be determined by comprehensively considering circumstances such as the nature, means, intensity, and degree of harm of the unlawful infringement, as well as the timing, means, intensity, and harmful consequences of the defense, taking into account the balance of power between the parties, the situation in which the defender was at the time of defense, and the general perception of the public. If, after comprehensive consideration, the defensive act is found to be vastly disproportionate to the unlawful infringement and obviously excessive, it should be deemed as clearly exceeding the necessary limits. “Causing major harm” refers to causing serious injury or death to the unlawful infringer. Causing minor injury or below does not constitute major harm. If the defensive act clearly exceeds the necessary limits but does not cause major harm, it should not be deemed excessive defense. It can be seen that the Guiding Opinions provide many reference factors for the determination standard of excessive defense. Judges need to conduct reasoning within this framework and strictly follow the constituent elements in their judgments. However, through case retrieval, it was found that the determination of excessive defense remains difficult to ascertain and prone to disputes.

First, even under the current implementation of the Guiding Opinions, some judgments still do not discuss in detail the reasons for denying excessive defense and do not fully consider relevant factors, leading to questionable conclusions. The Liuzhi Special District People’s Court of Liupanshui City, Guizhou Province, in its criminal judgment (2021) Qian 0203 Xing Chu No. 58, held that after the defendant Zhang Dalong and the victim Zhang Lulin had a dispute over scanning a QR code for payment, Zhang Lulin first struck Zhang Dalong, and then both engaged in mutual affray. After being separated, Zhang Dalong took scissors from a nearby barbecue stall and walked to the opposite sidewalk on People’s Hospital Road. When Zhang Lulin and Li Xinjian pursued him and attacked him, he used the scissors to counterattack, engaging in mutual affray with Zhang Lulin and Li Xinjian, resulting in injuries to Zhang Lulin, Li Xinjian, and Wang, who tried to stop the fight. Zhang Lulin died after rescue efforts failed. Therefore, the defendant Zhang Dalong’s conduct did not constitute excessive defense. The court also held that the victim Zhang Lulin had some fault in the occurrence of the case, which could serve as a mitigating factor for the defendant’s punishment. Considering the facts, both instances of fighting were initiated by the victim’s excessive acts (actively attacking the defendant). The second fight occurred when the victim actively pursued the defendant. The interval between the two fights was short and连贯. The victim’s side had two participants, giving them a numerical advantage. The defendant only prepared the scissors after the first fight for self-defense. The eventual consequence was the victim’s death. If only these two factors are considered to deny excessive defense, it may contravene the content and spirit of the Guiding Opinions by not fully considering the necessity limit of defense. Article 9 of the Guiding Opinions provides that the determination of defensive intent should not be affected solely because the actor prepared for defense in advance. Article 18 provides that for defensive acts that do not meet the conditions for special defense, if they cause injury or death to the unlawful infringer but do not clearly exceed the necessary limits, they should also be deemed justifiable defense, and no criminal liability shall be incurred. In summary, the judgment of “clearly exceeding the necessary limits” should be very strict. The word “clearly” can be interpreted as delegating the authority of legal judgment to the public, i.e., examining whether the defensive act is seriously inconsistent with social appropriateness. However, in this case, facing two active provocations and attacks by the victim’s side, the defender himself had also sustained minor injuries. After continuously stabbing one person and causing them to retreat, the defender proactively stopped the attack. Seeing this, the other person still rushed towards the defendant, attempting to snatch the scissors. The defendant then continuously stabbed this person as well, causing serious injury. Considering the overall circumstances, the degree of violation of social appropriateness by the defendant does not reach the level of “clear.” The court should have at least recognized that he constituted excessive defense. Whether it constituted justifiable defense also leaves some room for discussion. Second, Article 11 of the Guiding Opinions explicitly provides that excessive defense requires the simultaneous existence of both “clearly exceeding the necessary limits” and “causing major harm.” However, in judicial practice, the “result-oriented” adjudication thinking remains relatively serious. The Huludao Intermediate People’s Court of Liaoning Province, in its criminal judgment (2020) Liao 14 Xing Chu No. 25, held that, based on the facts ascertained in this case, given that Chi 2 had already illegally entered the residence, the defendant Wang Liyan held a knife and demanded Chi 2 leave. Chi 2 then stepped forward to snatch the knife. During this process, Wang stabbed and injured Chi 2. Her conduct had a defensive nature and could be characterized as a justifiable defensive act. However, the defendant Wang Liyan’s defensive act caused Chi 2’s death. Her defensive act clearly exceeded the necessary limits and caused major harm, and should be deemed excessive defense according to law. In this case, considering the balance of power, the victim was a strong male, while the defendant was female. From the perspective of the origin of the incident, the victim repeatedly provoked and harassed the defendant, constituting the illegal or criminal act of illegal intrusion into a residence. The defense took place in the defendant’s own home. Before using the knife, the defendant explicitly demanded that the victim leave. However, the victim stepped forward to snatch the weapon. During the struggle, the victim was stabbed to death. Combining the author’s analysis, the consequence of death should be assessed from the situation in which the defender was at the time. Despite the occurrence of the death, overall, the defendant’s conduct was not clearly excessive and did not clearly violate general social norms. The judgment is questionable.

We can also find similar issues in the criminal judgment (2021) Yu 0117 Xing Chu No. 336 of the Hechuan District People’s Court of Chongqing. The court held that, from the physical evidence (photographs), the wooden stool picked up by Jiang Kui was relatively heavy, causing significant harm when used against a person. At the time, only Huang 2 stepped forward to prepare to commit the infringement, and he did not have any tools. In terms of proportionality, Jiang Kui swinging the wooden stool and hitting Huang 2’s head, causing his death, clearly exceeded the necessary limits of justifiable defense and constituted excessive defense. In this case, the court only compared the numerical disparity between the parties, the presence or absence of tools, and the lethality of the tools used during the defense, without comprehensively and dynamically observing the entire process of the case. In fact, the judge’s reasoning was somewhat contradictory to the facts described in the case: “(1) Jiang Kui and Huang 2 had a verbal altercation over trivial matters. Although Jiang Kui struck first, he only administered a slap, which was not obviously excessive. When Huang 2 and others assaulted Jiang Kui, Jiang did not clearly resist, and a mutual affray was not formed. After Jiang Kui fled the scene, Huang 2 and others did not stop but continued to chase Jiang Kui for over 100 meters, catching up to him at the front yard of No. 120, Jie Street, Hechuan District, Chongqing, and continued to assault him. At this point, the time and location were clearly distinct from the earlier conflict and should not be simply regarded as a continuous conflict. (2) When Huang 2 and others chased Jiang Kui to the front yard of No. 120, Jie Street, Hechuan District, and continued to assault him, Jiang Kui was at a clear disadvantage in terms of numbers and strength, with no ability to fight back. His personal safety was under serious threat, meeting the requirement of an ongoing unlawful infringement for justifiable defense. (3) Jiang Kui again broke free from the assault of Huang 2 and others, retreating to the entrance of No. 120, Jie Street, Hechuan District. According to the scene investigation map, Jiang Kui had been cornered, with Huang 2 and others essentially blocking his escape route. When Huang 2 was preparing to approach Jiang Kui again to commit the infringement, Jiang Kui picked up a wooden stool at his feet to defend himself, meeting the requirement of real and imminent danger for justifiable defense.” Given the causes and consequences of the case and the multiple stages of the conflict, although the wooden stool was relatively lethal, if the wooden stool present at the scene was the only or one of the few defensive tools available (this point was not ascertained by the court or reasonable doubt was not excluded), and the defendant grabbed it opportunistically without actively using it to counterattack, and the victim approached despite seeing the defendant holding the wooden stool, attempting to commit the infringement, the necessity of the defendant’s use of the wooden stool for striking was even more apparent. To determine excessive defense based solely on the consequence of death is inappropriate.

Of course, besides the above cases, some judgments have more accurately implemented the rules on determining excessive defense in the Guiding Opinions. For example, the Liaoyang Intermediate People’s Court of Liaoning Province, in its criminal judgment (2022) Liao 10 Xing Zai No. 1, held that in this case, Yin Jilong’s freight station was located in a remote area. When the assault occurred, Yin was cornered on a kang (brick bed) that was surrounded by walls on three sides with no windows or doors for escape. Among the unlawful infringers, some used tools, and some snatched the defensive tool from Yin’s hand. The balance of power was vastly disparate. Subsequently, forensic identification confirmed that Yin’s face and eyes were beaten to minor injuries. Yin used a folding knife at the time to enhance his defensive capability, which was reasonable in terms of means and intensity. Moreover, after Yin first opened the folding knife to warn and order the unlawful infringement to stop, which was unsuccessful, he did not use the knife to stab anyone. Therefore, from the perspective of the actual need to stop the overall unlawful infringement, Yin’s act of swinging and stabbing with the knife did not “clearly exceed the necessary limits.” The judge in this case, based on the defender’s situation, accurately determined that the defendant’s conduct constituted justifiable defense, considering factors such as the location of the defense, the number of people on the other side, the balance of power, and the snatching of the weapon. This is truly rare.

IV. Further Reflections: Establishing Supporting Procedures for the Implementation of the Guiding Opinions

Through the above analysis of the positive changes brought about by the implementation of the Guiding Opinions and the集中 problems that have emerged, this article argues that how to implement the adjudicative rules in the Guiding Opinions into each specific judicial case is a significant issue. Although the existing substantive legal rules still have numerous controversies, their scientific and rational nature has been significantly improved, and substantive legal guarantees for the accurate application of the justifiable defense provision are now in place. However, despite the availability of relatively comprehensive and clear substantive legal rules, why do numerous noteworthy new and old problems persist? One possible answer is that the implementation of the Guiding Opinions lacks effective and comprehensive supporting procedural rules. Although some courts have been conducting similar practices, they often lack systematic梳理 or clear explanation. On this issue, the author would like to offer a few humble suggestions:

First, for cases where justifiable defense is denied or excessive defense is affirmed, the case should be submitted to the adjudication committee for discussion, providing the presiding judge with more experience and intellectual support to avoid individual arbitrariness. In cases resulting in serious injury or death of the victim, if the defender pleads justifiable defense or excessive defense, the court should organize an open hearing with representatives from the public, lawyers, scholars, etc., to fully absorb different opinions.

Second, in the stages of document review and quality evaluation, the requirements for reasoning in judgments involving justifiable defense should be raised. The format of judgments in such cases should be standardized, and the reasoning process should be publicly disclosed to achieve the effect of “adjudicating one case, educating the public.”

Third, Party committees of political and legal affairs, people’s courts, and people’s procuratorates at all levels should regularly accept representations from the public regarding justifiable defense cases, establish special working groups, and take measures such as sampling and reviewing previously adjudicated cases according to established work plans to truly promote the resolution of cases.

Fourth, for cases involving justifiable defense where the judge does not apply the rules in the Guiding Opinions or deems the relevant facts not to meet the prerequisites for the application of the rules in the Guiding Opinions, the presiding judge should write a special trial note. This note should include the facts of the case, the detailed reasons for not applying the rules, the retrieval and analysis of similar cases, whether there is theoretical research support, etc. It should be signed or sealed by the presiding judge or other responsible personnel and kept together with the final judgment document. It will also serve as a valid document for judicial accountability.