Lawyer's character

“Regarding the defense of the defender, the prosecutor expressed the following views:

1. The fight between the defendant and the victim is a mutual fight.

After the defendant Tan Peicai learned that Qin Leiming was looking for someone to mess with him, he should have reported to the company leaders or the public security organs to calm the situation or retreat, but instead of reporting, Tan Peicai actively prepared tools, showing that he was not afraid of threats. , has a "show off" mentality - 'If you dare to find someone to mess with me, I will mess with you', it should be presumed that he has the subjective intention to fight. Therefore, the nature of his counterattack behavior is to fight each other rather than to defend himself.

2. The defendant Tan Peicai has not suffered any ongoing illegal infringement.

Tan Peicai's slap in the mouth was a minor injury, and the harm to his personal safety was not major or urgent, nor did it constitute an 'ongoing illegal infringement'. He could have called for help or escaped from the surrounding people, but he immediately took out his hand The switch knife prepared in advance stabbed the opponent and caused serious injuries to the victim. His behavior was "pre-defense" and was not defensive in nature.

In summary, the defendant's behavior did not constitute legitimate defense, nor did it constitute excessive defense. complete. ” the prosecutor responded.

"The defender can respond to the prosecutor's opinions," the presiding judge said.

“Based on the prosecutor’s defense opinions and response, the defender issued the following defense opinions:

1. When defendant Tan Peicai was personally threatened, he carried a switchblade, not to fight each other, but for self-defense.

The prosecutor believed that "the defendant did not report to the unit leaders or the public security organs, but instead prepared tools in advance, indicating that he had subjective intention to fight." The defender believed that the prosecutor's above opinion was biased.

First, after the defendant Tan Peicai's personal safety was threatened (Qin Leiming said that he wanted to find someone to do something to him), but before he was actually harmed, his behavior of preparing a switchblade did not indicate whether it was for defense or for fighting. His purpose was only It can be determined based on relevant facts and evidence, rather than arbitrary speculation.

According to the confession of Tan Peicai, the defendant in this case, he prepared the switchblade for defense. If Tan Leiming did not find someone to mess with him, he would not take the initiative to find trouble against Tan Leiming.

According to the evidence in the case, Tan Peicai learned that Tan Leiming threatened to find someone to mess with him, but he did not find anyone and prepared to fight with Tan Leiming's group. He also did not know how many people Tan Leiming would call and when and where he would mess with him. (beat) him.

In order to deal with real threats and prevent unexpected events, the defendant prepared defensive tools in advance and carried a switchblade with him. This is not enough to show that Tan Peicai had the intention to fight or fight with the other party.

According to the evidence provided by the prosecutor, Tan Peicai was stopped by a group of victims on his way home from get off work, dragged into a grove and beaten before he fought back, and the defendant stabbed the victim before escaping. The defendant did not take the initiative or fight back continuously.

It can be seen that the purpose of defendant Tan Peicai preparing the tools was for defense, not for fighting. The existing facts and evidence in this case cannot show that Tan Peicai prepared the tools in advance for the purpose of fighting with the victim and others.

Second, public remedies are limited after all. Even if the defendant reports to company leaders or public security organs in advance, it is difficult to receive effective protection.

In this case, the threat to the defendant Tan Peicai was not certain and significant, and the time and place of the other party's retaliation were uncertain. Under such circumstances, the public security organs usually provide relief after the fact (there is no way to control it beforehand). If the defendant is not beaten, the public security organs may be helpless.

In order to more effectively protect the safety of citizens' lives and property, the "Criminal Law" stipulates the legitimate defense system. Since the law gives citizens the right to legitimate defense, when their personal safety is threatened, they should be allowed to make necessary defense preparations.

The public prosecution agency believes that when the defendant's personal safety is threatened, he can only report to the unit leader or the public security agency, but cannot prepare for defense. When he is illegally violated, he can only call for help or run away. Only when calling for help or running away is ineffective can he be on the spot. The idea of ​​taking materials or seizing the opponent's tools for defense is obviously unreasonable and contrary to the legislative spirit of legitimate defense.

It can be seen from the above that Tan Peicai, the defendant in this case, prepared defensive tools after his personal safety was threatened and before he was harmed. This was not inappropriate and his behavior was not prohibited by law.

Third, in terms of value orientation, criminal law should promote justice, punish evil and promote good.

The defendant Tan Peicai, faced with the malicious provocations from Qin Leiming and others, prepared defensive tools in advance to prevent unexpected events. This was a natural reaction and should not be subject to excessive demands or restrictions.

Therefore, even if it is difficult to define whether the defendant Tan Peicai prepared the switchblade for defense or for fighting, a presumption should be made in favor of the defendant Tan Peicai. Only in this way can it be consistent with eliminating evil and promoting good. the original meaning of criminal law.

To sum up, the defender believes that the purpose of preparing the switchblade in advance by the defendant Tan Peicai was for defense, not for fighting.

2. The "ongoing illegal infringement" stipulated in Article 20 of the "Criminal Law" does not have to be of considerable seriousness before defense can be carried out.

Paragraphs 1 and 2 of Article 20 of the Criminal Law stipulate that actions taken to stop illegal infringement in order to protect the country, public interests, the person, property and other rights of oneself or others from ongoing illegal infringement shall not be punished for illegal infringement. If the damage caused by the offender is legitimate defense, if the legitimate defense obviously exceeds the necessary limit and causes major damage, he shall bear criminal responsibility, but the punishment shall be reduced or exempted.

‘Unlawful infringement’ in the above provisions refers to behaviors that illegally endanger other people’s personal, property and other legitimate rights and interests.

The intensity of the ongoing unlawful infringement suffered by the perpetrator of legitimate defense is not a prerequisite for legitimate defense, but only a limiting condition for legitimate defense.

The prerequisite for legitimate defense is the existence of ‘ongoing unlawful infringement’. As long as the victim is subjected to ongoing unlawful infringement, regardless of the severity, the offended person can immediately carry out defensive actions to stop the unlawful infringement.

The so-called "beforehand" in the "prior defense" mentioned by the prosecutor means that the illegal infringement has not yet begun. For an unlawful infringement that has already begun and is ongoing, even if the degree is quite minor, the defender has the right to take corresponding defensive actions. This situation does not belong to the so-called "prior defense".

In this case, the victim Wei Runquan and others ganged up and surrounded Tan Peicai with weapons. His behavior of talking about Tan Peicai showed that his illegal infringement on Tan Peicai had begun and was ongoing. Although the victim's behavior was relatively minor, it was Judging from the circumstances at the time of the crime, the available evidence cannot prove that the victim would give up and not resort to more brutal means. "At this point, Fang Yi paused and swallowed, moistening his thirsty throat.

On the side, Yun Qiao, who said nothing, felt extremely angry: Could it be that the person who was beaten can only be a little sheep? Can we only wait for relief from the public security organs, but cannot resist and defend ourselves? ! Then what is the meaning of legitimate defense under the "Criminal Law"? Why can't you speak with your brain? You didn't take medicine when you came out in the morning!