CONTENTS OF THE RIGHT TO JUSTIFUL DEFENSE
Acts of retaliation by defense guards must be aimed at infringing acts
According to Article 22 of the Penal Code in 2015, amended in 2017, the defense person’s act of retaliation must be aimed at the person who is committing the infringement, as there is such a purpose of justid defense to prevent acts of infringing, preventing or limiting the damage that this act may cause. This retaliation by the defense person may be directed at the person committing the infringement (life, health) or may be aimed only at the tools and means of crime that the person is using. Either way, retaliation can cause certain damage to the person committing the infringement.
Damage caused by a person committing acts of defense may be loss of life or health to the person committing the act of infringement. For example, A walks through an alleyway and sees a man threatening and raping a young girl. Seeing that there was a stick next to it, A used a stick to add to the other man’s head and seriously injured him. A’s conduct is considered defensive behaviour in cases where the legitimate interests of others (young girls) are being violated.
In case the defense person does not cause loss of life or health to the person committing the infringing act but causes other damage, depending on the specific case, whether or not it is considered as a defense act. For example, Mr. A was chased by Mr. B with a knife, to prevent B from chasing him, so A used a lighter to light B’s house.
Acts of defense are not permitted to cause damage to third parties
Defensive acts are not permitted to cause damage to third parties. Because one of the purposes of legitimate defense is to promptly and effectively prevent acts that are causing damage to legitimate interests, the defense person must prevent the source of danger, the person who is committed the act of abuse. If we harm others, we don’t achieve this goal.
Defense guards who do not cause damage to the infringing acts themselves but cause damage to others (usually relatives of infringing acts), are not considered acts of defense. For example, Mr. A was beaten by Mr. B, but Mr. A did not fight back against Mr. B but hit H (son of B) seriously injured. Mr. A’s behavior is not considered defensive behavior.
SCOPE OF THE RIGHT TO JUSTIFUL DEFENSE
According to Article 22 of the Penal Code in 2015, amended and supplemented in 2017, justidful defense must be a “necessary” act of defense. This means that countermdging measures placed by the defense in specific circumstances must be necessary to prevent infringement, prevent or limit the damage that this behavior may cause. The necessary limitation does not mean that the consequences caused by the defense person must be equal to or equivalent to the damage caused by the person who committed the unlawful attack. In the reasoning and practice of application, the consequences caused by the defense person may be many times greater than the consequences that the person who committed the infringing act is still considered a justidful defense if the assessment of defensive behavior is necessary strong enough to prevent the attack of the person who committed the act of abuse.
To determine whether resistance is necessary, first of all must be based on the nature of the infringed interests; the nature of the infringement and other correlations between infringement and defensive behavior.
The more important the infringed interest, the stronger the act of fighting back; For example, if a police officer shoots and kills a person who has broken into a strictly protected area under a special regime, the guard’s behavior is deemed necessary and justid. But the fatal shooting of a student who entered the school picking a few labels and was shot dead by security guards is not considered necessary and that guard is not considered a justid defense. So when considering whether counter-behaviour is necessary or not, it is necessary to place it under specific circumstances in the relationship between protected interests and retaliating behavior.
The more dangerous and serious the nature and extent of the infringement, the more drastic the act of fighting back. For example, a gun-wielding robber who threatened people on a bus for his accomplices to search for property, was shot dead by a criminal police officer. The conduct of this police officer is considered a justid-right act of defense. But if the new police officer sees the robber holding a knife threatening people to give money to him and hastily shot and killed the robber, it is not considered a justid defense, but if the robber took a person hostage, then used a knife to put him in the neck and threatened if he did not let him escape, he would stab the hostages to death. , and the cop who shot and killed the robber is deemed necessary.
When assessing whether a retaliating action is necessary or not, it is necessary to base on many other factors such as: the force correlation between the infringing party and the defense party, the time and space of the incident.
The basis for assessing defensive behavior within the necessary limits or exceeding the limits required for a general assessment through various grounds and grounds, which should first consider the nature of the importance of damaged social relations, the nature of , the level of danger that the offensive behavior infringes (assessed through the type of tools, means, methods of attack …), the dangerous consequences that the offensive behavior is likely to cause … On the defense side; the defense person used the means tool, how to defend; correlation of forces between the defense and those who commit unlawful attacks, etc. v….
When determining a justidful defense, it is not allowed to compare merely between the damage caused to the person committing the infringement and the damage that the person committing this act threatens to cause. Legitimate defense is not a measure of revenge but a measure of timely prevention of acts that cause damage to society. This purpose can only be achieved in many cases by having to inflict greater damage on the person committing the infringement. It is also not practical to compare the two damages in many cases, since it is possible that the nature of the two types of damage – the threatened damage caused and the damage that the defense causes is completely different as in the case of a defense against rape. However, the damage caused to the person committing the infringement is a factor that shows the nature and extent of the act of retaliation, so it is only allowed to a certain extent to be able to ensure the necessity of the payment.
As such, the assessment of the “necessary limitations” in justid-yourself defense is only relative. Therefore, if causing obvious damage beyond the necessary limits, the defense personnel exceeding shall bear criminal liability but shall be relieved of circumstances. In cases where the person who commits acts of defense exceeds unclear, he/she shall not be liable for criminal liability.
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