November 2020
Guiding Opinions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on the Lawful Application of the Self-defense System (Mainland China)
Di Wu
For the proper application of the self-defense system to protect the people’s right to self-defense, encourage selfless assistance, promote social good and integrate core socialist values into criminal justice, the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security formulated the Guiding Opinions on the Lawful Application of the Self-defense System (the "Guiding Opinions") on August 28, 2020 in accordance with the relevant provisions of the Criminal Law of the People's Republic of China and the Criminal Procedure Law of the People's Republic of China.
1. Specific applications of self-defense
(1) The causes and conditions of self-defense shall be properly grasped. Self-defense must be predicated on unlawful infringement being present, including unlawful infringement against individuals, the state, public interest or others as well as infringement against life, health, personal freedom, public and private property. They cover not only criminal acts but also unlawful acts.
(2) The timing of self-defense shall be properly understood. Self-defense can only be applied toward ongoing unlawful infringement.
(3) The target of self-defense shall be properly understood. Self-defense must be targeting the wrongdoer. If multiple individuals are infringing, self-defense may target both individuals directly infringing and the others that are jointly infringing at the same time.
(4) The intent element of self-defense shall be properly understood. Self-defense can only be applied to protect the state, public interest, the one's own body or that of others, as well as property and other rights from being unlawfully infringed. If a person intentionally provokes others to inflict harm on oneself by words or conduct and then fights back, such defense and provocation shall not be considered an act of self-defense.
2. Specific applications of excessive self-defense
(1) The conditions for determining excessive self-defense shall be properly understood. Article 20, Paragraph 2 of the Criminal Law provides that excessive self-defense must meet both "clearly exceeding the extent of what is necessary" and "causing substantial damage". Whether the self-defense is "clearly exceeding the extent of what is necessary" should be determined by comprehensively considering the nature of the infringement, the method used, the severity, the threat caused, and the timing of the self-defense, the method of defense, and the resulting harm, while also considering the relative strength of the parties, the circumstances of the defender at the time of the self-defense act, and the general understanding of the public.
(2) "Causing significant damage" should be properly determined. "Causing significant damage" refers to serious injury or death to the offender; minor injuries or lesser damage shall not be considered as significant damage. If a defensive act clearly went beyond the extent necessary but no significant damage is caused, then it shall not be considered excessive defense.
For the proper application of the self-defense system to protect the people’s right to self-defense, encourage selfless assistance, promote social good and integrate core socialist values into criminal justice, the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security formulated the Guiding Opinions on the Lawful Application of the Self-defense System (the "Guiding Opinions") on August 28, 2020 in accordance with the relevant provisions of the Criminal Law of the People's Republic of China and the Criminal Procedure Law of the People's Republic of China.
1. Specific applications of self-defense
(1) The causes and conditions of self-defense shall be properly grasped. Self-defense must be predicated on unlawful infringement being present, including unlawful infringement against individuals, the state, public interest or others as well as infringement against life, health, personal freedom, public and private property. They cover not only criminal acts but also unlawful acts.
(2) The timing of self-defense shall be properly understood. Self-defense can only be applied toward ongoing unlawful infringement.
(3) The target of self-defense shall be properly understood. Self-defense must be targeting the wrongdoer. If multiple individuals are infringing, self-defense may target both individuals directly infringing and the others that are jointly infringing at the same time.
(4) The intent element of self-defense shall be properly understood. Self-defense can only be applied to protect the state, public interest, the one's own body or that of others, as well as property and other rights from being unlawfully infringed. If a person intentionally provokes others to inflict harm on oneself by words or conduct and then fights back, such defense and provocation shall not be considered an act of self-defense.
2. Specific applications of excessive self-defense
(1) The conditions for determining excessive self-defense shall be properly understood. Article 20, Paragraph 2 of the Criminal Law provides that excessive self-defense must meet both "clearly exceeding the extent of what is necessary" and "causing substantial damage". Whether the self-defense is "clearly exceeding the extent of what is necessary" should be determined by comprehensively considering the nature of the infringement, the method used, the severity, the threat caused, and the timing of the self-defense, the method of defense, and the resulting harm, while also considering the relative strength of the parties, the circumstances of the defender at the time of the self-defense act, and the general understanding of the public.
(2) "Causing significant damage" should be properly determined. "Causing significant damage" refers to serious injury or death to the offender; minor injuries or lesser damage shall not be considered as significant damage. If a defensive act clearly went beyond the extent necessary but no significant damage is caused, then it shall not be considered excessive defense.
