a female land rover driver was driving in the wrong direction and hit someone. if the male driver fought back, could it be considered self-defense?
2024-09-04
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the incident of "a female driver of land rover in qingdao driving against the flow of traffic and cutting in line and beating someone" has continued to attract attention in recent days. the male driver who was beaten did not fight back even when he was slapped and his nose bled, which also attracted discussion among netizens. "she didn't fight back even when her face was covered in blood?" "she should fight back against such a person, and fighting back should be considered as legitimate defense."
is fighting back after being beaten considered mutual fighting or self-defense? in an interview with a reporter from beijing daily client, a criminal lawyer said that whether it is self-defense depends on the specific analysis of the specific issues. it is crucial for law enforcement departments and judicial organs to make comprehensive considerations based on the principle of unity of subjective and objective factors. lawyers remind the public: when facing illegal infringements, we must stand up wisely and show the courage and determination to say "no" to "illegality".
stopping illegal infringement does not mean you have to fight back when you are beaten.
"it is rare for the male driver to be so restrained," said shi hongying, a lawyer at beijing yinghong law firm. the male driver was beaten continuously and had the right to stop the illegal infringement against him, but chinese law does not require him to fight back if he is beaten.
"the identification of legitimate defense is relatively strict, including that the unlawful infringement must be urgent and ongoing, and cannot obviously exceed the necessary limit to cause major damage. for example, if the other party is slashing at you with a knife and your life is already threatened, then taking the knife and killing him is legitimate defense." lawyer shi hongying said: "but if the other party's injuries are relatively minor and no weapon is used, you can dodge, push, or even grab the other party's hand to control it, which is legitimate defense. in the case that these methods can avoid conflict and injury, if you directly choose to fight back, it is unclear or difficult to prove whether the fight back is for defense or attack. in practice, it may be identified as mutual fighting."
"so in this incident, when the male driver was beaten, he could use defensive measures such as dodging, blocking, and pushing away. if he did not take measures to avoid conflict and directly fought back against the female driver, or even fought back excessively, it would most likely not be recognized as legitimate defense," said lawyer shi hongying.
in the opinion of lawyer shi hongying, responding to a beating by directly fighting back may also lead to uncontrollable risks. "when people are emotionally excited, their actions may be out of control. once they cause minor injuries or more damage to the other party, they may also bear criminal responsibility. in the case of mutual fighting, whoever causes more serious consequences will bear greater responsibility. in reality, it is often the case that the person who provokes the incident is only convicted of administrative violations, while the original victim is convicted of intentional injury because he or she caused more serious injuries."
"when encountering illegal infringement, it is certainly not encouraged to just wait to be beaten. first of all, you should hide and block it, and call the police in time to avoid further harm. if you can try to avoid conflict, directly fighting back is not the best option," said lawyer shi hongying.
law enforcement agencies need to carefully distinguish between self-defense and mutual fighting
in 2020, the supreme people's court, the supreme people's procuratorate, and the ministry of public security jointly issued the "guiding opinions on the legal application of the legitimate defense system", which clearly stated: "if a dispute arises over trivial matters and both parties fail to exercise restraint and a fight breaks out, the party at fault strikes first and the means are obviously excessive, or if one party strikes first and continues to infringe while the other party tries to avoid conflict, the party's counterattack should generally be deemed a defensive act."
yu jingmin, a lawyer at beijing yingke (haidian district) law firm, believes that legal norms give citizens space to enjoy and exercise the right of defense in accordance with the law at the institutional level. however, in practice, the reality of the legitimate defense system is more complicated.
lawyer yu jingmin said that there is a clear boundary between legitimate defense and mutual fighting from the perspective of subjective and objective conditions. for example, defensive behavior is based on the intention of defense, triggered by offensive behavior, and is passive; on the contrary, mutual fighting is essentially violent injury, and the perpetrator subjectively actively pursues or passively allows the other party to suffer injury.
"it is very important to let the public truly dare to exercise the right of self-defense in accordance with the law and effectively protect their legitimate rights and interests. a direct and key issue is whether law enforcement agencies and judicial organs can adhere to the rule of law. to judge whether a person is defending himself or fighting each other, we cannot rely solely on external manifestations such as behavior. instead, we must follow the principle of unity of subjective and objective factors and comprehensively consider which party is obviously at fault for the occurrence of the incident and the escalation of the conflict, and whether weapons are used or prepared to be used. in addition, objective circumstances such as whether obviously disproportionate violence has been used and whether others have been gathered to participate in the fight are also the basis for measurement." yu jingmin said.
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according to a report from the police in laoshan district of qingdao, at around 13:00 on august 28, a female driver named wang was driving in the opposite direction near the qingshan village observation deck in laoshan district. because a male driver named lin, who was driving normally in the opposite direction, did not give way to her, wang got out of the car and insulted and beat lin.
in the on-site video, wang shouted "what's wrong with me driving in the wrong direction? what's wrong with me hitting you?" while slapping the male driver repeatedly. the male driver sat in the car and did not fight back, and even took a video as evidence.
afterwards, the police imposed a 10-day administrative detention on wang and a fine of 1,000 yuan.
