criminal

According to Article 23 of the Criminal Law: "There will be no punishment for current illegal infringements committed in defense of one's own or the rights of others. However, if the defensive behavior is excessive, the punishment may be reduced or exempted." The observation provision stipulates that it can be divided into two elements. The perpetrator must perform "acts in defense of his own rights or the rights of others" in response to "currently unlawful infringement." From a literal point of view, another person's attack is an unlawful infringement, and fighting back is an act of defense of one's own physical rights, which seems to constitute "legitimate defense." However, will the court make the same determination?

The Supreme Court's 30-year-old case No. 1040 states: "Legitimate defense can only be carried out in response to current illegal infringements. The infringement has already passed, so there is no legitimate defense. When fighting each other, it must be that one party did not injure anyone in the first place." An act of retaliation to eliminate the other party's unlawful infringement can be regarded as a legitimate defense. Therefore, retaliatory acts after the infringement has passed and acts of fighting in which it is impossible to distinguish the unlawful infringement cannot claim the right of defense."

According to the intention of the above-mentioned case, objectively, the attacker should prove that he did not injure anyone in the first place, but that after being attacked by the other party, the infringing behavior is still continuing, or the other party is in the final stage of preparing to attack, and has to resort to passive counterattack as a last resort. Secondly, one cannot claim self-defense by retaliating against an infringement that has already occurred, such as striking someone even after being pulled away by a third party (Criminal Judgment No. 3849 of the Supreme Court of the People's Republic of China, 103 Years), etc. Subjectively, the perpetrator must have defensive intentions.

As for the act of fighting back, only the least intrusive defensive means of choice can be used. For example, when the perpetrator is being beaten, he will knock the offender away with his shoulder, causing contusion on the offender's left knee, and struggling and twisting his limbs, causing the offender's right ankle to be bruised. Contusions (Criminal Judgment No. 1396 of the Taiwan High Court, Taichung Branch, 103 Years in Shang Yi), only pushing and slapping the offender’s arms left and right with both hands (Criminal Judgment No. 656, Shang Yi, 103 Years of the Taiwan High Court, Taichung Branch), etc., otherwise There may be concerns about over-defense.

To sum up, due to the strict recognition of "legitimate defense" in practice, the proportion of counterattacks that can constitute legitimate defense is not high. The method of counterattack must be a necessary counterattack simply to eliminate unlawful infringement, and then there is " The application of "legitimate defense".