(Approved by the Judicial Committee of the Supreme People's Court on December 29, 2020)

　　Keywords: Criminal/justifiable defense/Special defense/assault/acquittal

　　Points of judgment

　　1.For the use of lethal weapons to attack another person's vital parts, seriously endangering the personal safety of others, shall be identified as the "assault" provided for in Article 20, paragraph 3 of the Criminal Law, the relevant provisions of special defense may be applied。

　　2.Where multiple persons jointly commit unlawful infringement, some unlawful infringers have been subdued, but other unlawful infringers continue to commit infringement, they can still defend themselves。

　　Relevant law

　　Article 20 of Criminal Law of the People's Republic of China

　　Basic case

　　Zhang Namula and his brother Zhang Mou 1 two people work in Xiqing District of Tianjin。On January 11, 2016, Zhang 1 and Li Moumou, an outsider, drove a motor vehicle in a traffic accident。After the accident, Li fled with his car。In the process of dealing with the accident, Zhang Na mu La party that the traffic police handling slack。Since then, Zhang Namulla heard that Zhou Mou strong in the traffic police have connections, then through the fish pond boss cattle to find Zhou Mou strong, please Zhou Mou strong to the traffic police "hello", Zhou Mou strong answer。March 10, Zhang Namullah in the traffic police to deal with disputes with the traffic police quarrel, then happened to give Zhang Namullah call, Zhang Namullah thought Zhou strong can suppress the traffic police, let the traffic police directly answer the phone, Zhang Namullah caused Zhou strong dissatisfaction, Zhou strong immediately hang up the phone。The next day, cow in the phone to remind Zhang that wood pull careful, Zhou strong on the matter。

　　March 12 at 8:00 a.m，Zhang Namula chats with her brother Zhang1 and Zhao in a cabin near a fish pond in Xiqing District, Tianjin，Zhou strong and cluster, Zhang 2, Chen 2 new，Driving by Cong，And carrying Chen 2 new prepared in advance two machetes，To the temporary residence of Zhangnamula, Xiqing District, Tianjin (divided into inner and outer rooms)。Four people entered the temporary residence of ZhangNamula for the first time to confirm that Zhangnamula was behind the house, then returned to the car and took out the two machetes prepared in advance。Among them, Zhou Mou Qiang, Chen Mou 2 new two people each with a machete, Cong Mou, Zhang Mou 2 respectively from the fishing pond to exercise the shovel, hammer again into the temporary residence of Zhang Namula。Zhang 1 will walk in the back of the Zhang 2 cut in the outhouse, two people fight。Zhou Mou strong, Chen Mou 2 new, Cong into the house, three people to pull out of the house, Zhang that the wood pulled back。At the moment, Zhou Mou strong, Chen Mou 2 new see Zhang Na mula refused to come out of the house, knife to Zhang Na mula after the brain, Zhang Na mula picked up a sharp knife on the coffee table stabbed Chen Mou 2 new chest, Chen Mou 2 new was stabbed back to the outhouse, then fell to the ground。In the meantime, Cong took a shovel and hit Zhang Namula at the back of the head。Zhou Mou strong, Cong Mou see Chen 2 new fell to the ground also ran out of the house。Zhang Namula put the sharp knife back in its place。此时，It found that Zhang 2 was still fighting with his brother Zhang 1 outside the house，To prevent Zhang 1 from being beaten，Out of the house，Pick up the shovel at the door will be wielding a machete Zhou strong into the fish pond，Zhou strong climbed ashore after Zhang Namula again knocked it into the water，Finally Zhou Mou Qiang left ulna proximal comminuted fracture，His machete fell into the fish pond。At this time, Zhang 1 has seized the hammer in the hands of Zhang 2, and Zhang 2 hit the fish pond。Zhang Namula immediately called the police and waited at the scene。After being sent to the hospital, Chen died of hemorrhagic shock due to puncture of the heart with a single-edge sharp instrument.Zhang Namula scalp injury degree constitutes a slight injury;The injury degree of Zhou's left ulna constitutes a minor injury。

　　verdict

　　Tianjin Xiqing District People's Court on December 13, 2017 made (2016) Jin0111 No. 576 criminal collateral civil judgment, for the defendant Zhang Namula committed intentional injury, sentenced to 12 years and six months in prison。Defendant Zhang Namula appealed on the grounds that it was self-defense and did not constitute a crime。On December 14, 2018, the Tianjin First Intermediate People's Court issued (2018) No. 326 Criminal Incidental civil judgment, revoked the Tianjin Xiqing District People's Court (2016) No. 576 Criminal incidental civil judgment, and declared Zhang Namula innocent。

　　Reason for judgment

　　The effective judgment of the court held that Zhang Namula's act was an act of justifiable defense, and it was a special act of defense stipulated in the third paragraph of Article 20 of the Criminal Law。In this case, Zhang Namula fought back when Zhou Mou Qiang and Chen Mou 2 Xin suddenly broke into their private places and carried out serious illegal infringement。Zhou Mou Qiang, Chen Mou 2 new and other four people prepared the crime tools in advance, entered the scene when two people were holding a machete about 50 centimeters long, one was holding a shovel, one was holding a hammer, and Zhang Na Mu La side was not prepared for any thought。Zhou strong party broke into the house after the implementation of dragging Zhang Na mula, and Zhang Na mula turned and broke away from the back, using the weapon he carried to smash and cut Zhang Na mula after the brain。Judging from the circumstances such as the number of infringing parties, the weapon held, and the location of the attack, and judging from the level of ordinary people's understanding, it should be considered that the illegal infringement has reached the extent of endangering Zhang Namula's personal safety and endangering his life safety, and belongs to the "assault" stipulated in the third paragraph of Article 20 of the Criminal Law.。Zhang Na mula in order to stop the ongoing illegal infringement, hand-in-hand from the side to grab a knife used in ordinary life to stab the illegal aggressor, with legitimacy, belongs to legitimate defense。

　　In addition, surveillance video shows that after Chen 2 new fell to the ground, Zhou strong ran outside the house still brandishing a machete, at this time Zhang Namula and his brother Zhang 1 personal safety risk has not been completely ruled out, the behavior of wounding Zhou strong outside the house is still a defensive act。

　　According to the provisions of Article 20, paragraph 3, of the Criminal Law, anyone who acts of defense against assault, homicide, robbery, rape, kidnapping or other violent crimes that seriously endanger personal safety and cause injury or death to the unlawful aggressor shall not be deemed to have acted with excessive defense and shall not bear criminal responsibility。In this case, although Zhang Namula's behavior caused one death and one injury, it was an act of justifiable defense to stop unlawful infringement, and he was not liable for criminal liability according to law。

　　(Effective judges: Yang Xuemei, He Zhenkui, Lu Cheng)