Can self-defense stand the ground in China?
Photo: image.baidu.com

Compared with laws of some western countries where preemptive defense is allowed, China is far behind in evoking victim’s right to “stand on their ground”. The rationale behind this contrast might be the authority believes if they let people bravely resist injustice and fend for their own interest, it might tacitly grant them the right to protest and lead to more social unrest which will be deeply unnerving and loathsome for them. The controversy over legitimate self-defense and excessive use of force will linger on in China though public opinion believes the defenders were normally underprivileged under the current legal system.
 
As a manufacturing hub in eastern China, Kunshan city is just one-hour drive from Shanghai, China's biggest metropolises. The city is well-known for its indigenous cultural heritages such as Kunqu Opera and elegant ancient courtyards. Like any other rich cities in China, Kunshan is also an economic mecca drawing hundreds of thousands of migrant workers from around the country. The issue of managing such a huge community far bigger than its local population has been taken on quite well until a few days ago, when a BMW sedan veered into the cycling lane and a verbal skirmish turned into a bloody scuffle. 
 
According to testimony of the cyclist who was a blue-collar worker and father to 3 children, his bike was hit by the sedan and he was bullied by 3 people, one of whom is a tattoo man who threatened to cut off his head with a machete. He pleaded for mercy, but the man brutally attacked his head so furiously that he lost grasp of the machete. In a flash, the cyclist seized the machete for himself and slashed back at the assailant twice. The tattoo man didn't relent and claimed to go back to the car to take his gun. To preempt a certain death, the cyclist chased the man and killed him. The surprising turn of the event has garnered torrent of support for the cyclist who in their opinion act as a vigilante to strike down a villain who was later found out to be a repeated offender with a track record of heinous transgressions. 
 
Similar incident has been heard before. Just one year ago, a life sentence was overturned after online outcry for leniency on a young man who killed a gangster who held him and his mother captive and abused them brutally. Both incidents have set off heated debates online about whether the defenders’ actions crossed the legal boundaries of justifiable self-defense. 
 
Although China's law allows any citizen to act in self-defense, in practice the legal code for self-defense leaves little room for what people can do to protect themselves. The line is also blurred between self-defense and the use of excessive force. Some law scholars have even joked that the legal code for self-defense has become a "zombie code" that is not applicable in practice.
 
“Stand Your Ground”

Coincidentally, on the opposite side of the planet, another hothead was also gunned down by an Uber driver in the US after the guy jumped out of his truck and warned the Uber driver he had a gun and might shoot him. The fatal confrontation, captured on the Uber driver’s dash camera, was what the Polk County sheriff called a "classic 'stand your ground' case," referring to the controversial Florida law that grants immunity to people acting in self-defense. 
 
Floridians have always had the right to defend themselves, but the state’s “stand your ground” law says people who believe someone is trying to kill or seriously harm them don’t have an obligation to retreat before using deadly force. 
 
In the past, defense attorneys had to explain why their clients deserved immunity in a killing. Now based on the “stand your ground” law, it would be prosecutors’ onus to prove that people who claim they were standing their ground are wrong. Essentially, the law shifted the burden of proof from defense attorneys to prosecutors. 
 
It’s the same case in other developed countries upholding the rule of law, such as the UK, where law does not oblige people to take defensive measures only if they are first attacked. When the British courts are weighing the legitimacy of self-defenses, they will consider the specific atmosphere at the time of the incident and the threat that the defenders have perceived.
 
On the contrary, under Chinese law, the protection of human dignity is a lower priority than the protection of the right to human life. In China’s legal definition of "legitimate defense", there are strict terms requiring defensive actions to occur only when illegal assault is under way, which is different from the laws of those western countries, where preemptive defense is allowed. 
 
In China's judicial system, "urgency" and "necessity" are two important benchmarks for weighing the legitimacy of defensive behavior. According to the current Chinese criminal law, legitimate defense must first be justified by the urgency and necessity of the circumstance - there must be evidence to prove that the other party is inflicting bodily harm on you.
 
Thus, the preemptive shooting happening under the “stand on your ground” law in Florida will not be accepted in China. Even the provision of legitimate defense is rarely evoked in China, an article published on the news portal sohu.com analyzed 100 court cases involving similar incidents and found that there were only four cases where the suspect was found to have acted in legitimate defense.  
 
From “right to defend” to “right to protest”
 
In China, the judiciary system is very conservative and reluctant to evoke the defender’s right to legitimate defense, such cases were often judged as use of excessive defense irrespective of the circumstances. The reason is very complicated, one of the reasons is the dogmatic use of the law by the courts, because of their bigot in adhering to the wishy-washy theory of self-defense, believing that people should remain rational all the time even under life-threatening scenarios while European and American courts often take into account circumstantial emotions and feelings of defenders. In fact, it is not possible to require people to stay calm and make accurate decisions on how to deliver a proper counter attack. 
 
It’s worth noting that maintaining social stability may also be one of the reasons behind judicial reluctance to recognize legitimate defense. After all, China’s criminal law is deeply influenced by the former Soviet Union. The authority may prefer keeping social order to the protection of individual rights. If the authority let people bravely resist injustice and fend for their own interest, it might tacitly grant them the right to protest and lead to more social unrest which will be deeply unnerving and loathsome for them. The controversy over legitimate self-defense and excessive use of force will linger on in China though public opinion believes the defenders were normally underprivileged under the current legal system.
 

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