Conditions for justifiable defense

Foreigners may, according to the relevant provisions of the Criminal Law of China, exercise justifiable defense. Justifiable defense in the Criminal Law of China refers to an act that a person commits to stop an unlawful infringement to prevent the interests of the country and the public, or his own or other person’s personal, property or other rights, from being infringed when coming across an on-going unlawful infringement, and under this situation, the act causing harm to the perpetrator of unlawful act is justifiable defense, and the person shall not bear criminal liability.

In general, justifiable defense must meet the following conditions:

(1) Unlawful infringement must exist objectively. That is to say, first of all, the unlawful infringement must be not allowed by law and is illegal; second, the unlawful infringement must be a direct attack, and is already very urgent; finally, this unlawful infringement is real and is not a subjective imagination.

(2) The unlawful infringement is ongoing. That is to say, this unlawful infringement has begun and is not over. If a person prevents the unlawful infringement before it starts or after it stops, it does not meet the requirement of justifiable defense.

(3) The defender has the consciousness to defend. That is to say, the defender has realized the unlawful infringement is ongoing, and conducts an act to prevent the unlawful infringement for the purpose of protecting the lawful rights and interests. Instead, without this understanding and purpose, if he prevents the unlawful infringement out of some accidental reasons, it does not constitute justifiable defense; the fight between two sides does not constitute justifiable defense either, and it is infringing each other; if a person wants to hurt another person, so he deliberately inflicts the other party to hurt him, and then he hurt the other in back, his act does not constitute justifiable defense, and may constitute a crime.

(4) The defense should against the perpetrator of unlawful act. That is to say, the act to stop the act of illegal infringement should not against others, and must be against the perpetrator of unlawful act.

(5) The defense does not obviously exceed the limits of necessity. Here the “the limits of necessity” shall be determined according to the reasonable need to stop illegal infringement and protect the legitimate rights and interests, and shall be determined with a combination of factors such as the dangerous extent of unlawful infringement, the strength of infringement, and the number of the perpetrators. An act beyond the limits of necessity will constitute excessive defense, which shall be punished by the Criminal Law. But, in an emergency, the weight of “the limits” does not require very accurate, only when it obviously exceeds the limits of necessity, and has caused serious harm, will be considered as excessive defense by the Criminal Law.

In addition, in order to better protect personal safety, the Criminal Law provides that, to take defensive action against ongoing personal injury, murder, robbery, rape, kidnapping and other serious crimes endangering personal safety, and cause injury or death to the perpetrator of the unlawful act, does not constitute excessive defense, and will not be held for criminal liability.