Definition:

1. Justifiable defense refers to actions taken to prevent ongoing unlawful infringement on the rights of the state, public interests, or personal, property, and other rights of oneself or others, which cause harm to the infringer without incurring criminal liability.

2. If justifiable defense significantly exceeds the necessary limits and causes substantial harm, criminal liability shall be incurred, but the punishment should be mitigated or exempted.

3. Defensive actions taken against violent crimes such as assault, murder, robbery, rape, kidnapping, and other serious threats to personal safety that result in injury or death to the infringer do not constitute excessive defense and do not incur criminal liability.

Conditions for Establishment:

• 1. Cause Condition: There must be an actual unlawful infringement (unlawfulness and reality).

  (1) Unlawfulness
  ① Can defense be exercised against unlawful acts by those without capacity for responsibility?
  Yes, defense can be exercised against unlawful acts by those who are under the age of criminal responsibility, lack criminal responsibility, or are mentally ill, as their actions are objectively unlawful.
  ② Issues with animal attacks
  ③ Types of unlawful infringement
  First, unlawful infringement includes both intentional and negligent unlawful acts.
  Second, unlawful infringement includes both acts of commission and omission.
  (2) Reality
  The unlawful infringement must be objectively real.
  ① Issues with imaginary defense
  First, although imaginary defense is not justifiable defense, it requires formal characteristics of justifiable defense, such as the “unlawful infringement” being imminent and the defensive means being appropriate.
  Second, the handling of imaginary defense:

  • If the defender acts intentionally, it constitutes intentional crime, not imaginary defense.
  • If the defender is negligent, it constitutes negligent crime.
  • If the defender is not negligent, it is treated as an accidental event.
    ② As long as there is an ongoing unlawful infringement, regardless of whether the defender foresaw it or prepared for defense in advance, justifiable defense can be exercised. It cannot be considered preemptive defense.

• 2. Time Condition: The unlawful infringement must be ongoing (timeliness and urgency).

  (1) Untimely defense includes preemptive and post-facto defense.
  Handling methods:

  • If done intentionally, it constitutes intentional crime.
  • If done negligently, it constitutes negligent crime.
  • If done without intent or negligence, it is treated as an accidental event.
    (2) Special cases in property crimes
    Even if the act is completed, if the loss can still be recovered on the scene, the unlawful infringement is considered ongoing, and justifiable defense can be exercised. That is, the unlawful infringement continues during the pursuit until the perpetrator safely hides the property.
    (3) Even if the natural act has ended, if there is an imminent danger to legal interests, justifiable defense can still be exercised.
    (4) If the unlawful infringement is temporarily paused but not completely eliminated, justifiable defense can be exercised.
    (5) Defensive devices
    Setting up defensive devices against future unlawful infringements constitutes justifiable defense if:
  • It does not endanger public safety.
  • The defensive means are appropriate to the unlawful infringement.
    It cannot be considered preemptive defense.

• 3. Intent Condition (Subjective Condition): There must be a defensive intent.

  (1) “Black against black” issues
  Since the actor does not have the intent for justifiable defense, i.e., not for legitimate rights, it cannot be recognized as justifiable defense. Both the infringer and the defender in such cases are held legally accountable, and if a crime is constituted, they are punished according to their respective crimes. The legitimacy of justifiable defense should be judged from both subjective and objective aspects.
  (2) Provocation of defense
  Provocation of defense refers to intentionally provoking the other party to commit an infringement first, then using the excuse of being unlawfully infringed to harm the other party.
  (3) Mutual combat
  In mutual combat, since both parties have the intent to infringe on each other, neither party generally constitutes justifiable defense.
  (4) Accidental defense
  For example, if A shoots B while B is preparing to kill C, and A kills B without knowing B’s intent, A objectively stops an unlawful infringement. Does A constitute justifiable defense? Since A has criminal intent and is not acting against injustice, it does not constitute justifiable defense but intentional crime.

• 4. Object Condition: Defense must be directed against the unlawful infringer.

  (1) The infringer includes co-conspirators, but only those who are currently committing the unlawful infringement, i.e., the co-conspirator’s unlawful infringement must be imminent.
  (2) If A intentionally incites B’s dog to bite C (B is unaware), and C kills the dog in defense, C’s act is justifiable defense against A and emergency avoidance against B. Here, justifiable defense and emergency avoidance overlap, and justifiable defense is prioritized.
  (3) If A infringes on B, and B uses C’s pool cue to defend against A, damaging the cue, B’s act is justifiable defense against A and emergency avoidance against C. Here, justifiable defense and emergency avoidance overlap, and justifiable defense is prioritized.
  (4) If A infringes on B, and B throws a stone in defense, hitting A and injuring passerby C, B’s act is justifiable defense against A and emergency avoidance against C. Here, justifiable defense and emergency avoidance overlap, and justifiable defense is prioritized.

• 5. Limit Condition: The defense must not significantly exceed the necessary limits and cause substantial harm (necessity and proportionality).

  (1) Excessive defense
  First, the fault form of excessive defense is negligence. Excessive defense causing serious injury or death constitutes negligent causing serious injury or death.
  Second, post-facto defense should not be considered excessive defense.