Special Declaration: This article is an original work by Attorney Shao Shiwei. It represents only the personal views of the author and does not constitute legal consultation or legal advice on specific matters. For article reprints, legal consultations, or business exchanges, please add: sswls66

 

In the Face of Unlawful Infringement, Can We “Counter Violence with Violence”?

—Reflections on the System of Justifiable Defense in Light of the Tangshan Assault Case: We Are All Just Ordinary People

 

Author: Attorney Shao Shiwei

 

 

 

In recent days, the Tangshan assault case has dominated trending search topics one after another. Those of us who have seen the surveillance footage are filled with indignation. However, hot-button incidents are invariably accompanied by online harassment. Today, news emerged featuring a statement from the female owner of the barbecue restaurant. [Play]

 

However, some individuals carefully reviewed the surveillance footage and discovered that throughout the entire “gang beating of women” incident, only five people attempted to intervene. Four of them were friends of the assailants. The remaining one was the female owner of the barbecue restaurant.

 

In stark contrast to the scene where several innocent women were brutally beaten, the seemingly “relatively static” demeanor of the onlookers at the scene is deeply distressing. Moreover, the only person who intervened—the female owner—has been subjected to online harassment, her establishment has ceased operations, and she may even lose her livelihood as a result. Thus, how has society come to this state?

 

From the Yu Huan intentional injury case and the Yu Haiming justifiable defense case to the current Tangshan assault incident, public discussion regarding the system of justifiable defense has been reignited once again.

Through the surveillance footage, one can fully sense the fear of the bystanders. Anyone facing a similar situation would anticipate the significant danger they would encounter if they acted courageously to uphold justice. Stopping unlawful conduct inherently requires immense courage. However, does the existing legal framework provide sufficient encouragement for such courage?

 

Let us examine a case: On August 27, 2018, a knife-wielding assault occurred in Kunshan City, Jiangsu Province. Liu Hailong, driving a BMW sedan, got into a dispute with Yu Haiming, who was riding a bicycle in the same direction at an intersection in Kunshan. Liu retrieved a chopper from his vehicle and repeatedly struck Yu. Yu subsequently seized the chopper from Liu and stabbed and slashed him multiple times. Liu sustained severe injuries and died despite emergency medical treatment.

 

Three days after the incident, the official account “Jiangsu Procuratorate Online” reposted an article titled “100 Criminal Cases Tell You That Justifiable Defense Still Requires Running Away!” The article analyzed 100 second-instance judgments on China Judgments Online where defendants sought lenient sentencing based on “justifiable defense.” Only four cases were recognized by the courts as justifiable defense; twenty were deemed excessive defense, and seventy-six were classified as intentional injury. The article stated: In a society governed by the rule of law, “countering violence with violence” is not permitted. When “I” stab “you” with a knife, “you” cannot rightfully stab back. So what should you do? Do not engage; the most correct course of action is to run!

 

Because this article was published shortly after the aforementioned “BMW Man Killed After Knife Attack” incident, it inevitably led many internet users to mistakenly believe it represented the official characterization of the case, sparking considerable debate. On August 30, 2018, the official WeChat account of the Tongzhou District Procuratorate in Beijing commented on the case, stating, “The electric bike owner’s actions constituted justifiable defense; the law should not impose unreasonable demands on individuals!” On September 1, 2018, the police announced that Yu Haiming’s actions constituted justifiable defense and he would not bear criminal responsibility. Thus, does the law truly encourage acts of courageously upholding justice and justifiable defense?

 

Let us review the relevant provisions:

Article 20 of the Criminal Law [Justifiable Defense]: Acts undertaken to stop ongoing unlawful infringement in order to protect the state, public interests, or the personal, property, and other rights of oneself or others from such infringement, which cause harm to the unlawful infringer, constitute justifiable defense and shall not bear criminal responsibility.

If justifiable defense clearly exceeds necessary limits and causes major damage, criminal responsibility shall be borne, but punishment shall be mitigated or exempted.

Defensive acts undertaken against ongoing violent crimes that seriously endanger personal safety, such as assault, murder, robbery, rape, kidnapping, and other similar offenses, which result in injury or death to the unlawful infringer, shall not be considered excessive defense and shall not bear criminal responsibility.”

 

According to these provisions, establishing justifiable defense requires meeting the following conditions:

Condition of Cause: The prerequisite for justifiable defense is the existence of unlawful infringement.

Condition of Timing: Justifiable defense must be directed against unlawful infringement that is currently occurring.

Condition of Target: Justifiable defense must be directed against the unlawful infringer.

Condition of Intent: Justifiable defense must be intended to protect the state, public interests, or the personal, property, and other rights of oneself or others from unlawful infringement.

 

Additionally, a clear distinction must be made between defensive acts and mutual affray, and whether the actor abused their right of defense must be determined.

If justifiable defense clearly exceeds necessary limits and causes major damage, it constitutes excessive defense, and criminal responsibility shall be borne accordingly.

 

Specifically regarding the Tangshan assault case:

For onlookers at the scene to engage in acts of justifiable defense entirely free from criminal risk,

First,One must identify the precise timing for defense. Intervention must occur immediately when the women are being beaten. If intervention occurs too early or too late, making it impossible to establish that the perpetrators were committing an ongoing assault, one may face administrative penalties. In serious circumstances, this could constitute the crime of intentional injury.

 

Second,The purpose of the defense must be to protect the beaten women from unlawful infringement. If you are acquainted with the male assailants and have prior disputes, harboring resentment towards them, and seize the opportunity to intervene and injure them under the pretext of the incident, this would not constitute justifiable defense.

 

Furthermore,Amidst the extreme panic and fear at the crime scene, you must also consider whether your intervention will be characterized as mutual affray. How can you determine whether your actions exceed necessary limits? What is the relationship between the assaulting men and the beaten women, and what caused their dispute? Could a subjective misunderstanding lead you to erroneously believe unlawful infringement exists, thereby constituting imaginary defense? While the law stipulates that defensive acts against ongoing perpetrators of assault, murder, and similar crimes do not constitute excessive defense, how can one predict with certainty whether the assailants will be legally recognized as ongoing perpetrators?

 

Unfortunately, in the face of the above questions,None of us possess an omniscient perspective at the time of the incident.

 

Let us examine a case similar to the present one:

In the early hours of June 2021, the defendant Wang Mou 1 passed by a barbecue restaurant and saw Li Mou and Liu Mou arguing with Wang Chao, a Didi designated driver, on the roadside. Wang Mou 1 stepped forward to mediate and advised Wang Chao to call the police. Subsequently, Li Mou, together with Liu Mou, Xue Mou, and Luan Mou, beat Wang Mou 1. Forensic evaluation determined that Liu Mou sustained minor injuries (Grade II), while defendant Wang Mou 1 sustained slight injuries. The defendant’s family compensated the victim Liu Mou 13,000 RMB for medical expenses.

Ultimately, the court held that Wang Mou 1’s actions did not constitute justifiable defense. Wang Mou 1 was convicted of intentional injury and sentenced to six months’ imprisonment.

 

Let us further examine two incidents involving courageous acts to uphold justice:

One occurred in Guang’an City, Sichuan Province. Huang, aged 17, drowned while saving others. Due to inconsistencies in the testimony of the sole eyewitness, Huang was not initially recognized for acting courageously to uphold justice. His father pursued the matter for seven years, after which the local government finally recognized Huang’s actions as such.

Another occurred in Qingfeng County, Henan Province. Wang Mouwei, aged 18, was drinking with companions when he unfortunately drowned while attempting to save a drowning companion. The local committee for evaluating acts of courageously upholding justice stated that he was fulfilling a statutory obligation and thus his actions did not constitute acting courageously to uphold justice.

 

In 2020, Guangming Daily published a commentary on these two incidents, stating: “The determination of acts courageously upholding justice should not be so difficult.”

Regarding the current Tangshan assault case, Professor Lao Dongyan from Tsinghua University Law School commented: “What shocked me most about this incident was that so many people nearby did not step forward to help. We should reflect more deeply on why the existing system fails to provide sufficient incentives and protection for those who act courageously to uphold justice.”The courage of ordinary people requires institutional support. Without the backing of institutional protection, the primary consideration for the vast majority of people will be self-preservation.Internet users have expressed agreement with this view.

 

Finally, I wish to quote Professor Luo Xiang’s remarks in his commentary on the Yu Huan intentional injury case and the Yu Haiming justifiable defense case: “No one is a purely rational actor. People all have weaknesses to varying degrees; perhaps only robots are truly rational actors.”The law is not a cold, rational machine; it must listen to, feel, and respect the suffering and hardships of the public. It must take into account the public’s simple moral sentiments and cannot disregard the voices of the people with the indifference and arrogance of hindsight bias.。

 

I believe that changing the social atmosphere requires further refinement of the law during its formulation and implementation, providing stronger and more reassuring protection for those who act courageously to uphold justice and those who exercise justifiable defense. At the very least, it should make people realize thatdoing good deeds will not be punished.If so, more people will bravely step forward.