2019.1.2
Angela Wu
The Supreme Court rendered the 107-Tai-Shang-4877 Criminal Decision of January 2, 2019 (hereinafter, the “Decision”), holding that although a defensive act engaged by an individual exercising the right of self-defense should not exceed the extent of necessity, still this does not mean that the self-defender can only choose to evade passively instead of taking active defensive measures or counterattacking the violator.
According to the facts underlying this Decision, since the Defendant found that the equipment for feeding wild cats in the balcony of his second-floor residence had been vandalized, he went to question the victim in his residence on the first floor, resulting in his quarrel with the victim. Witnessing this development, Neighbor A separated the two. The victim turned around and grabbed a bamboo pole to poke the Defendant, who grabbed the bamboo pole by hand and tussled with the victim. After both of them fell on the ground as a result, the Defendant took the opportunity to pin down the victim, resulting in the victim’s death from head injury. The original trial court held that this was not a justified self-defense and ruled that an offense of causing bodily harm was constituted. Dissatisfied, the Defendant appealed.
According to this Decision, the justified self-defense under Article 23 of the Criminal Code is preconditioned by the behavior to defend the rights of oneself or another person from any current unlawful violation. If the violation has begun and is still ongoing where the defender is still facing risks of violation, this is certainly considered a “current” violation. In addition, although a defensive act engaged by a justified self-defender should not exceed the extent of necessity, still this does not mean that the self-defender can only choose to evade passively instead of taking active defensive measures or counterattacking the violator.
It was further pointed out in this Decision that according to the surveillance camera footage and witness testimonies, if the victim turned around to grab a bamboo pole to poke the Appellant, who in turn grabbed the bamboo pole by hand, the victim’s act of violation had begun and was ongoing and was a “current” violation. The Appellant could certainly engage in “necessary” self-defensive act to eliminate the violation immediately, and it is not true that he could only respond to the violation by “standing down and leaving.” The witnesses all testified that the Appellant had shouted “Grab the pole from him” and “Let go of the pole before I let go of you.” In that case, this calls into question the Appellant ‘s grabbing of the bamboo pole by hand, tussling and scuttling with the victim and pinning the victim down were all attempts to snatch the bamboo pole from the victim to avoid being attacked by the victim with the bamboo pole again. If so, was the above behavior of the Appellant a justified self-defense? Was the self-defense excessive? Since further investigation was required, the original decision was reversed and remanded on such basis.