Penal Code Article 20, paragraph 3, ;the attack; in the theoretical study_6073

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Penal Code Article 20, paragraph 3, ;the attack; in the theoretical study_6073

    Penal Code Article 20, paragraph 3, "the attack" in the theoretical study

     Summary how to understand the Penal Code article 20, paragraph 3, the "perpetrators", criminal law theory and judicial practice, both in highly controversial. This should be a discussion on this issue, saying that "the attack" refers to the concrete can not be judged as a serious violation of civil rights crimes of violence against acts of serious violence, it has a violent, means limited to qualitative level of serious , as well as the

    specific charges, etc. can not be scheduled for several characteristics. The article points out, such an interpretation, "the assailant" has a logical and reasonable and practical rationality, and in line with legislative intent.

     Penal Code Article 20, paragraph 3, stipulates that "the ongoing assailant, murder, robbery, rape, kidnapping and other serious threat to the safety of violent crime, to take defensive actions, resulting in illegal infringement of casualties, and not over-defense, be held

    criminally responsible. "How to understand the terms of the" assailants ", criminal law theory and judicial practice, both in a great controversy, and on the" assailant "and an accurate understanding of defensive behavior is directly related to the characterization of the problem. Therefore, in order to promote criminal law theory to further explore the issue, thus an accurate application of criminal law in judicial practice of article 20, paragraph 3, to provide a meaningful theoretical guidance, the author

    proposed for the meaning of "acts" to make some superficial view.

     1, the "perpetrators" Analysis of the existing interpretation of

     "Assailant" is a daily mass language rather than legal language, wishing to accurately explain it clearly there is considerable difficulty. However, the application of this provision also requested to be as accurate as possible to understand "the attack." Therefore, since the new Criminal Code after the promulgation of

    刑法理论界the "perpetrators" of the word are not being stopped. Taken

    together the following main point:

     The first death in that. This view is up from the consequences of the definition of the attack, saying that "the perpetrators of the attack is severe, that may cause serious injury, death of the assailant." (Note:

    Gao, Ke-Chang Ma editor: "Criminal Law" (the series), China Legal Publishing Society in 1999 edition, p. 242.)

     Second, intentional injury, said. That "murderers" should specifically refer to intentional harm, intentionally causing bodily harm,

    may result in serious injury or even death to others the serious consequences of crime. The general law of assault is not included. (Note: See Du Baoqing: "No excessive application of the law defense," containing "China Journal of Criminal Law" in 1999 3; Zhen-Feng: "On several issues

    of self-defense", in LIU Shou-fen, Huang Ding-quan editor: "Criminal Legal

    research on thematic issues, "the masses Press, 1998, p. 253; Wang pre-

    existence, Zhen-Hua Xu:" Criminal Law in the citizen's right to due

    process ", in Ding Mu Ying, Li Chun, Hu Yunteng editor:" Criminal Law of the key and difficult problems in the implementation of research " , Law Press, 1998, p. 437; Lu Zhong-jun: "theory" does not belong to over-

    defense "of the special provisions," contained YANG Dun first, Su Yue, LIU Sheng-Rong Hu Yunteng editor: "The new criminal laws and research and apply to difficult problems "China Procuratorate Press 1999 edition, p. 244; Gao Hongbin:" On an infinite right to due process ", in" Politics and

    the law "in 1998 4.) the kinds of ideas for most scholars have long advocated, and therefore also on" the assailant, "the most representative view.

     Third, the anti-wrote. That "the meaning of the Penal Code

    'perpetrators', is to impose lethal violence to others, a serious threat to a person's life, health, rights and interests of behavior" that is "anti-other people's behavior", but this destruction was not a clear nor does it have to determine mens rea, in other words, is a "kill or fatal

    injury to another person with the uncertainty mens rea" behavior. The commentators further noted that if the defense were using lethal violence but not a threat to other people's lives, health, rights and interests, not the assailant; If you are using a non-lethal violence, it is generally

    impossible to endanger the lives of others, health benefits, and thus is not the assailant. (Note: see Qu Xue-Wu: "being the assailant and the non-

    excessive defense right," Criminal Law in 1999 academic year, paper, 3-4


     Fourth, the violence, said. To say there are two different views. First, violent crime, said. That the assailant with the Penal Code article 20, paragraph 3, listed in murder, rape, robbery, kidnapping of the same nature of serious violent crimes. (Note: see Marden China, Wang Editor: "The new solution and application of penal fine", Nankai University Press, 1997, p. 32.) 2 is to use the weapon of violence, said. View of what constitutes excessive non-defense assailants, only the "perpetrators of

    violence limited to the use of weapon," specifically "refers to the use of weapon, for the victims of violent attacks, seriously endangering the

safety of the victim" behavior. (Note: See Chen Xingliang: "On the non-off

    when the defense", in "Law" in 1998 No. 6.)

     So, how to look at the above four kinds of view? In my opinion, the above-mentioned the "murderers" in a variety of understanding are questionable. Here I analyze them one by one.

     On the first view. The kinds of views that "the perpetrators of the

    attack is severe, that may cause serious injury, death of the assailant." Clearly, this type of view is a kind of circular explanation, it is actually the structure of such a logic, that "the attack is ... ... assailant, "" assailant ... ... that ... ... the attack. " Although in the "perpetrators" before using some phrase such as "serious", "may result in serious injury and death," and these attributive also have a certain rationality, but these attributive only on the "perpetrators" limited

    quantity, rather than the "assailant" nature of the definition of what is "the attack" is still unclear.

     That "the attack" refers specifically to the crime of intentional injury to the second point of view there are two problems, first, if the

    "perpetrator" is a deliberate assault, legislators will be directly provided in the provisions. Because, in the article, the legislature has clearly provided for murder, robbery, rape, kidnapping and other specific types of crime, the crime of intentional injury as the Criminal Law is

    expressly provided for a serious violation of civil rights crimes, if you need a clear provisions are directly provided in the provision, so that they both clear and simple, but there is no need to introduce a criminal

    law norms great pains never used the words - "murderers" instead of, this

    simple homes on the legislative Fan way in any case is to explain not make sense. Second, if the "perpetrator" is the intentional injuries, you can not explain the "perpetrators" and a provision for a "serious threat to

    the safety of other crimes of violence" (To read a concise, hereinafter referred to as "other") relationship. The use of criminal law provisions from the "other" such wording is intended to look at, and both are due to

    legislation in order to prevent the failure of 11 of the conditions listed for France, while the unmodified law happens Shiyou the embarrassment of widely adopted take advantage of a legislative solution. In Article 20, paragraph 3, the same is true of crime can apply it in self-defense is

    certainly not just by the provision of out of the four counts listed in the Penal Code, there are still a number of violent crime or the criminal use of violent means would be a serious threat to citizens personal safety, in order to prevent omissions, so using the "other" to this general provision. According to here, "other" provisions of intentional assault course also included the. If it is considered "murderers" is also intentional injuries, then would not such an outcome, that "the attack" is

    the intentional injuries, "other" crimes of violence also includes intentional injuries. As a result, one and the same article twice before and after the emergence of the provisions of the crime of intentional injury. Such a low level, meaningless repetition of the possibility of legislation is almost zero. Because the average person need not repeat the

    same thing Shangju know to provide for one articles, let alone have a basic professional knowledge and long experience in legislative practice

    of legislators. Moreover, the crime of intentional injury caused great harm to the big men, but nor should it be bigger than intentional homicide, and even intentional homicide in the provision expressly provided only once, what is the reason for the crime of intentional injury

    before and after the 2 sub-regulations? So, I think, the second view is

    unreasonable. This type of view is too intuitive understanding of the question of whether legislators underestimated the intelligence level?

     With regard to the third point of view. The commentators suggested that "the attack" the (anti-) behavior objectively, "not obvious" in the

    subjective is a kind of "uncertainty mens rea," the proposition that should be said is quite new. However, the theory does not hold down the

    value proposition in depth, but also against the second point of view to follow the second view of the ideas are still trying to "perpetrators" concrete into a specific crime. Because Lunzhe Suo said "uncertainty mens rea" in the content actually is some "OK", that is "kill or fatal injuries to others," corresponding, "the attack" behavior that is "anti - the

    actions of others. " Since the killing or fatal injury to others, criminal intent, is a threat to other people's lives, health, anti-rights acts of

    lethal violence, then the Lun Zhesuo that the "attackers" actually is the intentional killing or intentional harm. The only difference is that acts of killing or injury of "mens rea is OK." (Note: see Qu Xue-Wu: "being the

    assailant and the non-excessive defense right," Criminal Law in 1999

    academic year, papers, 3-4 pages.) In other words, is a mens rea vague

    acts of killing or injury. The problem is, no matter how mens rea uncertain behavior of the final properties are still only two, namely,

    homicide and injuries. Such a view does not escape the "assailant" concrete ideas. As the provisions have been clearly enumerated intentional homicide, but also due to be interpreted as the crime of intentional injury to unreasonable foregoing discussion. Therefore, the third point of

    view also debatable.

     As regards the fourth point of view, whether it is violent crime that is still using the weapon of violence that have a common advantage that they broke through the second and third views were not always consciously

    or unconsciously, the "perpetrators" be interpreted as a the idea of the specific charges and therefore have a relatively more reasonable. However, these two viewpoints have a common flaw, that is, they did not as "murderers" violence to be a more detailed description and analysis of the kinds of ideas involved in the problem, such as how to explain it with "other" provisions of The relationship between violence and violent crime, and so elaborate. And thus lost the simple, easy to understand and

    operate. In addition, these two views of their problems that still exist. First look at violent crime, said. The kinds of view, the attack is a kind of article 20 of Criminal Law listed in paragraph 3, kill, rape, robbery, kidnapping of the same nature of serious violent crimes. Since it is with murder, rape, robbery, kidnapping, serious violent crimes of the same nature, then, that is, "murderers" as if "other" requirements, there is an inclusive concept. Since they are all inclusive concept, both as a kind

    items, completely could be merged. "Murderers" should not be independent of the "other" would appear on the provision. The actual situation is the opposite. Second, using the weapon of violence, said. The limit of violence that would have to use a weapon. On the person intended to limit the "assailant," the scope of the criminal law to prevent abuse of the right of self-defense. The starting point is undoubtedly well-intentioned.

    However, this restriction does not fit all of the legitimate defense of

    the case, and some cases of the victims due to their own reasons, such as age has been high, the body weak, or sick in bed, and so on, while the vulnerable. In this case, even if the unlawful violation of the victim against the human hand, but also a serious threat to the victims of life, health, the possibility of this time, if a criminal violation did not use a weapon on the defensive behavior of the victim does not apply Article 20, paragraph 3, is clearly inappropriate. This is too absolute to explain

    clearly not conducive to protecting the rights of victims is not conducive to crack down on illegal and criminal acts.

     Second, on the "assailants" analysis to push the possibility of interpretation

     Since the above observations are in doubt, then, how to understand

    the "assailant" side as desirable? In this regard, I will derive below, step by step analysis of its own justify the conclusion.

     1. From the provisions of Article 20 of the Criminal Code of view, "the attack" should not and can not be a specific charge.

     I do not agree with the "perpetrators" as intentional infliction of injury, does not mean advocated "perpetrators" are some other specific offenses. "Assailant," Instead of wounding with intent, but is not in any

    other criminal charges, simply said, "murderers" is not any one specific offense. Because of the "perpetrators" as any specific charges would be brought, as construed as a deliberate assault the same consequences, namely, as previously mentioned, (1) Whether we will be "perpetrators" as

    an intentional assault or other offenses, we will find that this understanding there can not answer the question, since "the attack" is just criminal law already exist in a particular offense, then why legislators do not directly provide for the charges of the provisions, but Pofeizhouzhe to with "acts" like a past criminal legislation has never used the word? Could it be that doing so is only used to show that a certain crime, criminal law can be "perpetrators" Such a word to replace,

    or in order to show that "perpetrators" Such a word can replace the criminal law in a specific offense? If only for such a purpose, then, legislators use the term simply words on the game. (2) whether the "perpetrators" as to what specific charges will exist "assailant" and

    "other serious threat to the safety of citizens," the contradiction between the provisions. Since the provisions adopted the "other" such a general rule, while such a provision stating that, in addition to a provision of the murder, robbery, rape, kidnapping, other than the four

    specific crime, any provision in a serious violation of the article the personal rights of citizens of violent crime can all be included in. Therefore, any attempt to "murderers" as the practice of a specific

    offense, are making the specific crimes in the former (the "perpetrators"), after (that is, "other" provisions) were twice explained, which means that legislation before and after the repetition, but a simple repetition of such legislation in addition to that section provides that

    "the attack" superfluous outside do not seem to explain any problems.

     2. From the "perpetrators" in the literal sense, "the attack" should refer to violence (lines).

     Now that the "assailant" to mean the same as the crime of intentional

    injury to a specific count of the existence of the above in any case can not be satisfactorily answered and resolved, then the result is only a possibility, namely, "the attack" is not a deliberate assault, but also than any other one specific offenses. "This shows that legislators in the use of 'murderers' of the term when the ... ... most likely there are other meanings." (Note: Hou-yun, BAI Xiu-Yun: "The new Penal Code Analysis

    and application of difficult problems," China prosecution Publishing

    Society 1998 edition, p. 133.) So, what exactly is the meaning?

     From the Chinese of "assailant," the interpretation of terms. Shanghai Lexicographical Publishing House in 1979 published the "Ci Hai" will be "murderers" as "means the destruction of human behavior";

    Commercial Press in 1980 published in "Modern Chinese Dictionary" will, "the assailant" as "beatings, or murder "; tricyclic Press, published in 1990" language ceremony "will," the assailant "as" hit people or wounding

    (perpetrated). " Can be seen, "assailants" in Chinese meaning basically be unified as "killing or wounding (striking)." That "perpetrators" are scholars, the crime of intentional injury in fact such a logic, that since the "perpetrators" is "kill or maim," while provisions have been clearly

    defined as homicide, a result, "the attack" is deliberate hurt. This conclusion is actually the "assailant" is "killing or wounding" in the "murder" is equivalent to intentional homicide, while the "wounding" as a result of the crime of intentional injury. This simple logic makes even those who oppose equal to "intentional injury to say," the scholars pointed out that from a dictionary point of view, we have been unable to make further explanation. (Note: Hou-yun, BAI Xiu Yun: "The new Penal Code

    Analysis and application of difficult issues," the Chinese Procuratorate Press 1998 edition, p. 133.) In my opinion, because of killings unequivocal, so the former the same problem. The problem is, the latter equivalent to unreasonable, wounding does not necessarily only be a deliberate assault; to both the same point of view is a man to understand from the point of view of criminal law "wounding" result. In broader terms, "assault" includes a variety of people subject to mental or

    physical injury behavior. Specifically to criminal law, both including deliberate assault, but also including rape, kidnapping, forced molestation of women, and obstruction of official business, and many other criminal acts. Is it only intentional acts of assault, wounding and

    kidnapping, rape, etc. not hurt it? Obviously not. As the crime of intentional injury, as the latter type of criminal conduct is also inflicting damage behavior. Therefore, if in strict accordance with the literal meaning, we should Penal Code article 20, paragraph 3, the

    "perpetrator" is defined as "assault."

     However, the "murderers" is defined as "wounding" there are still two issues, namely, "wounding" the connotation too broad. According to the relevant Chinese dictionary definition, "wounding" is physically or

    mentally damaged people behavior. According to the Penal Code article 20, paragraph 3, provides that a prerequisite for the implementation of self-

    defense that there was a serious violation of civil rights of criminal

    acts, in other words, the human body that can cause physical injury against acts of pure spirit The infringement is not applicable to paragraph 3 of the Defense Right. The second is "wounding" is too colloquial term from the criminal law terms surviving a certain distance

    from the normative. So, what exactly should be used to explain the "perpetrators" can not lose the provisions of the requirements and the "wounding" the essential characteristic, but also overcome, "wounding" of the term are inadequate? In my opinion, "violence to say" the "violence", the word can act as this role, using it to replace the "wounding" very appropriate. First, according to Spanish on the definition of the attack, we can produce the "assailant" is the explanation of violence. In English,

    the "murderers" is defined as "commitphysicalassultormurder; doviolence." (Note: The English Department of Beijing Foreign Languages Institute, "Chinese-English Dictionary" compiled Writing Group: "Chinese-English

    Dictionary", The Commercial Press, 1978, p. 773.) directly translated into Chinese is: "the implementation of physical harm or murder; violence." In German, with regard to the attack is defined as, "eineGewalttatverüben;

    Gewalttatigkeitenbegehen." (Note: Beijing Foreign Languages Institute,

    "New Hand Dictionary" compiled Writing Group: "The new Hand Dictionary", The Commercial Press, 1985 edition, p. 906.) literally translated as Chinese is: "for violence, the implementation of brutal acts." Although in English, the "perpetrators" are also defined in order to "harm or murder" But at the same time, English will also be "murderers" is defined as "violence (OK)", it is in German, to "the assailant" explanation is the same. Second, the excluded, "wounding" in which a purely mental harm

    caused by the behavior of others, and the remaining is on the human body caused by acts of physical harm; and "violence" is very suitable for the original meaning of general physical damage caused to the people behavior. The Commercial Press in 1980 published in "Modern Chinese Dictionary" says

    that "violence" as "coercive power, force." Generally speaking, a purely mental injury caused to the violations, such as insults, slander, does not require the power and force through compulsory, even if used, nor is the

    nature of this crime and consistent features, but occasionally the a means. However, the infliction of physical injury against the behavior is different. It must be mandatory on the human body must be by force, otherwise it is unlikely to cause physical injury to. Therefore, in my

    opinion, can produce the "perpetrators" of violence (row) of the conclusion that the "perpetrators" be limited to intentional injuries explanation is that the "perpetrators" misunderstanding of the meaning of

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     3. As "perpetrators" of violence is different from "other" provisions of the violence, the former can not be judged as a specific offense of violence, while the latter is one that can determine specific charges of


     From the literal point of view, the "murderers" as Violence (OK) with which "other" provisions of the violent crime of violence there are repeating at risk. If the two kinds of "violence" to express the same meaning, that is not listed in the provision of the generality of the provisions in the crime, then, these two provisions would be entirely a legislative repetition. As mentioned earlier, the two should be merged as the same items, "the attack" should not appear in the separate provisions,

    the question is, "the attack" Also, indeed, separate provision in the provision, therefore, should determine the , as "murderers" are not violent in nature, as the "other" provisions of the violent crimes. At the same time, from the logical point of view, both the "other" must be

    excluded in the first half of the article listed in the "assailant, murder, robbery, kidnapping." Thus, as "murderers" violence should not be caught with the "other" under the general provisions of the conclusions

    with the same violence, but should have its own connotations.

     Then, "murderers" referred to violence and "other" provisions of the violent crime of violence the difference? Or, as "murderers" violence should be what kind of content? In my opinion, the provisions of paragraph

    3 from the point of view, the "other" provisions of the violent crime of violence is that covered by the specific offense, that is, the provision covers a wide range of violent crime charges in a general, omitting the type requirements . Statements from the provisions of view, the "other serious threat to the safety of citizens of violent crime" closely connected to "murder, robbery, rape, kidnapping," the four counts of crimes of violence, after that the legislator in the French article lists

    four a representative sample of violent crime charges, but to France and concise and not exhaustive article of all violent crime, so to use the "other" such an inclusive provision to express such as murder, robbery and other violent crime charges omitted and summarized. Cited provisions stated is the general provisions outlined the contents of the tips, while the expression of the general provisions is similar to the express provisions of the content takes name and omitted. (Note: Maybe soon

    someone will argue that being the case, how to interpret the "assailants" but not as a specific offense of murder, robbery and other such specific offenses codified in together? In my opinion, this is an exception to this, It is also legal and judicial practice has repeatedly explored the

    meaning of "murderers" reasons. But we can not because the "perpetrators" This legislation is more exceptional phenomenon, and negate the law under normal circumstances our understanding of Article, as the latter is our

    constant basis of applicable law. Moreover, the legislators will "assailant" in paragraph 3, the first place, rather than on murder, robbery, rape, kidnapping, among the four charges, nor is it with "other"

provisions are closely linked. in my opinion, this fact, to a certain

    extent that the "murderers" is not a specific offense, it provides the contents of the second half with a bit different. "assailants" in the French section of the more obvious but a special place for us the real explanation from another angle it offers a possibility.) China's Criminal Law is a lot of violent crime charges, which are mainly provided by two kinds of legislation in our statute books, the first violent means to express as constituting an element of the crime, such as hijacking of

    aircraft crimes, violent crimes such as endangering flight safety; one implied by violent means as constituent elements of the crime, such as forced trading crimes, crimes such as trouble. Of course, not all of these crimes can apply to Article 20, paragraph 3, provides that only those

    serious threat to personal safety should be applied. (Note: see Wang Fu, Ruan Fang-Min: "With regard to the new Criminal Code provisions of the Special Defense Right", in "China Law" in 1998, No. 5.) As for how to judge whether a "serious threat to the safety of other violent crimes," and "serious" nature, some scholars have put forward three criteria, namely, to determine the specific charges, according to whether the case has a "serious threat to personal security" threats to determine,

    according to Statutory Sentence to determine. These three criteria have a certain rationality, but there are some problems. From the charge can determine the extent of violent crime may not be implemented when the violence is certainly a serious, such as the crime of hijacking of

    vessels, if using a method of anesthesia, it can not be said to be serious; a particular case whether a "serious endanger the personal security "threat of course help us to determine, the problem is that, in judging the seriousness of the criminal nature of the whole before, there is also one on" a serious threat to personal security, "to determine whether the grave and then a lack of standards is difficult to determine judgments; nor can the severity of Legal Sentence judged the same as our

    truth, the crime is not a light punishment can not have more emphasis on violence, not a felony can not have less violence. In my view, serious is not serious, in addition to the above factors, there is one of the most important, it is necessary to fully take into account the differences between the cases, such as the victim's situation is different, unlawful violations of human physical differences of abuses of the environment different, and so on, with a violent crime in this case may be identified

    as not a "serious threat to the safety of citizens of violent crimes" in the Peter case, it may draw the opposite conclusion. Therefore, the situational understanding of the serious and not serious, is that we judge to article 20, paragraph 3, of the "other serious threat to the safety of citizens of violent crimes," the special needs to be a serious degree of attention. From a legislative point of view of concise, even for these serious crimes of violence is not likely to be enumerated, the best way is

    to adopt a general legislative requirements. In order to achieve the Law Article concise, and to avoid too specific articles of law brought about rigid. Can be seen in paragraph 3 of the "other" provisions outlined, omitting the specific charge is the one by one, rather than an abstract violence. And "murderers" should not be interpreted as a specific offense, which is described as before. Thus, as the "perpetrators" of the connotation of violence (OK) is not any one particular violent crime, is

    not fully consistent with the composition of any one element of violent crime can not be accurately determined for any one particular violent

    crime offenses. The latter covered by the criminal acts of violence is an expression of a specific violent crimes. So, as "acts" of violence can

    also be said violent crime, but that sin is sin refers to the abstract is a general sin; for the latter referring to the specific charges.

     In summary, I believe that so-called "perpetrators" refers to a

    particular can not be judged as a serious violation of civil rights crimes of violence against acts of serious violence.

     3, the "perpetrators," the final conclusions of the analysis of

     In order to contribute to an understanding on the "perpetrators" in

    the above views, I think I need a closer look at perceived "assailant" behavior characteristics, as well as be understood that "the attack" value.

     (A) "the attack" behavior of the characteristics of

     In order to better grasp the above-mentioned on the "assailant"

    conclusion, it should be as "acts" of violence characterized as a broadly defined. Overall, understanding "the attack" should pay attention to the following points:

     First, the content of violent behavior. "Murderers" as well as the

    literal meaning of article 20, paragraph 3, a prerequisite for the implementation of self-defense are that the "perpetrators" The first is a kind of violence is a violation of another person's acts of violence.

     Second, the limited characterization of violent means. As

    "murderers," the contents of the means of violence is not limited to, that is, can either use the weapon, you can not use.

     Third, the seriousness of the degree of violence. "Perpetrators" of violence (violence) is not the extent of its own limitations, but, under section 20, paragraph 3, after being, it must be superimposed on the degree of restriction, only gravity acts of violence is the first 3, described as "murderers." Therefore, although the former noted, as "murderers" in acts of violence is neither a specific murder, robbery, rape and kidnapping, but also different from the "other" provisions of the violent crimes. However, this is only in form (with or without a specific charge) is different, in essence, "the attack" in violence and they have

    the consistency that is a serious violation of civil rights acts of violence.

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