On September 3, 2020, the Supreme People's Court issued the "Guiding Opinions of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on the Application of the Justifiable Defense System According to Law" (hereinafter referred to as the "Guiding Opinions") and seven typical cases of justifiable defense, which netizens mostly refer to as the "new rules" for justifiable defense. In fact, the "Guiding Opinions" are not new regulations on justifiable defense, but rather a detailed clarification by the two highs and one ministry on the identification of justifiable defense situations. In the "Guiding Opinions", some provisions break through the shackles of old ideas, highlight the views of new theories, and have aroused the author's thinking.

 1. Determination of the Limits of Defense—A Reflection of Social Development and Judicial Progress.

Justifiable defense requires that the defensive act not exceed the necessary limits, and there are several theories in China's academic circles regarding the understanding of the necessary limits:

1. Basic Proportionality Theory. This theory holds that the core meaning of the limits of justifiable defense is that the defensive act and the infringing act are basically adapted in terms of behavioral intensity, behavioral means, etc., in order to be identified as justifiable defense.

 2. Objective Necessity Theory (Necessity Theory) refers to the limit of justifiable defense, which should be comprehensively examined based on whether it can actually and effectively prevent illegal infringement. If the intensity of the defensive act is necessary to prevent illegal infringement, it has not exceeded the limit condition. In other words, as long as the defensive act is objectively necessary, its intensity can be greater than, less than, or equivalent to the intensity of the infringement.

3. Superior Interest Protection Theory. Compares the defender's defensive behavior with the illegal infringer's infringing behavior. When comparing, the justifiable defensive behavior has essential superiority. The defender's interests and the illegal infringer's interests are evaluated higher when compared, that is, the defender's interests are superior to the illegal infringer's interests. 

4. Social Appropriateness Theory. This theory is proposed after comprehensively examining the advantages and disadvantages of the basic adaptation theory and the necessity theory. Its main content is the combination of the two theories. Social appropriateness refers to the behavior allowed by the social and ethical order historically formed in social life. As long as justifiable defense is in line with social appropriateness, it is considered not to exceed the necessary limits.

In fact, the understanding of the necessary limits of justifiable defense is also a process of continuous development and progress. For a long time, the practical circles in China have been guided by the basic adaptation theory, that is, as long as the infringing act has not caused harmful consequences, and the defensive act has caused casualties to the illegal infringer, or the casualties caused by the defensive act are greater than the infringing act, it is basically identified as excessive defense. The view of objective necessity is roughly the same. These views and practices also have their historical significance, because for a period of time, it is necessary to ensure the stability of social security in China and prevent people from using justifiable defense as an excuse to carry out infringing acts. We cannot trace the previous practices with the current perspective and thinking, otherwise, there will be suspicion of not being realistic and not combining with the background of the times. With the development of the economy and the progress of society, the legal awareness and humanistic quality of the Chinese people have been further improved, and the awareness of protecting their legitimate rights and interests has also been further strengthened. We can no longer use the previous views to measure the necessary limits of justifiable defense. At this time, the "Guiding Opinions" believe that whether the defensive act exceeds the necessary limits should not only be identified by comprehensively considering certain behavioral elements, but also be judged in combination with the general understanding of the public, which is in line with the view of social appropriateness. Therefore, this change in viewpoint and concept is actually the progress of justice.

2. Affirmation of Defensive Preparation—"The Law Cannot Give Way to Illegality."

For a long time, some scholars and judicial personnel have believed that for illegal infringing acts, one should first avoid them, and only when they cannot be avoided can justifiable defense be implemented. Therefore, defensive preparation is to cross the stage of being able to avoid but not avoiding, and directly attack the infringer, so it cannot be identified as justifiable defense. Now, this concept has also changed, and the most typical case is the "Laiyuan Counter-Killing Case." The judicial organs in Laiyuan County, Hebei Province, did not identify the defensive preparations made in advance by the family of the infringed girl Wang Moumou in their own home as excessive defense, and the behavior of the family of the infringed girl was identified as justifiable defense as a whole. 

The author believes that it is not appropriate to require the defender to bear the obligation of avoidance in the case of foreseeing illegal infringement. First of all, the obligation of avoidance is not conducive to the protection of the defender's rights. As a personal right, justifiable defense is the inherent right of every individual to self-assert by preventing others from illegally infringing on themselves. We cannot simply expect the victim to avoid the attack, otherwise, it is an improper, or even unreasonable, restriction on the right of justifiable defense, which is fundamentally not conducive to the protection of the defender's rights. Secondly, the obligation of avoidance is not conducive to the realization of crime prevention. The significance of justifiable defense lies not only in empowering the defender to stop illegal infringement through defensive acts and protect their legitimate rights and interests, but also in being closely related to crime prevention. If the obligation of avoidance is forcibly imposed on the defender, it is very likely that some illegal infringements that could have been stopped in time cannot be effectively stopped, which not only violates the purpose of the criminal law in establishing the justifiable defense system, but also is not conducive to preventing crime and defending society. Finally, the obligation of avoidance is also not conducive to the comprehensive realization of the rule of law. To comprehensively promote the rule of law, it is necessary to promote social fairness and justice and maintain social harmony and stability. In the face of illegal acts, any citizen has the right to stand up and fight for their legitimate rights and interests. However, simply requiring the victim to avoid infringement is obviously conducive to the arrogance of criminals and not conducive to the legitimate struggle of law-abiding citizens. Therefore, this provision of the "Guiding Opinions" affirms defensive preparation, which is precisely conveying the message that the law cannot give way to illegality.

3. Can Justifiable Defense Also Be Carried Out Against Infringing Acts Committed by Persons Without Criminal Responsibility—A Step Towards the Three-Tier Theory from the Four-Element Theory?

To this day, the four-element theory of crime composition is still the prevailing theory in the practical field. However, it is undeniable that the three-level theory based on illegality and responsibility is developing strongly. Here, the author has no intention of comparing the advantages and disadvantages of the two theories, but the four-element theory does have the suspicion of being too flat and comprehensively examining the conviction, which is contrary to the principle of restraint in criminal law. 

According to the four-element theory, the behavior of a person without criminal responsibility (a natural person under the age of 14) does not constitute a crime under any circumstances, and Article 20, Paragraph 3 of the Criminal Law stipulates: "Taking defensive actions against violent crimes that are being committed, such as homicide, murder, robbery, rape, kidnapping, and other serious threats to personal safety, causing injury or death to the illegal perpetrator, does not constitute excessive defense and does not bear criminal responsibility." So, can legitimate defense be carried out against violent acts such as homicide, murder, robbery, rape, kidnapping, and other serious threats to personal safety being carried out by persons without criminal responsibility? The four-element theory cannot solve this problem well. According to the three-level theory, violent acts such as homicide, murder, robbery, rape, kidnapping, and other serious threats to personal safety being carried out by persons without criminal responsibility are also illegal acts (just without responsibility), and legitimate defense can be carried out against illegal acts, which can solve this problem. The above-mentioned provisions of the Guiding Opinions are consistent with the three-level theory on many levels.

 In short, the author believes that the release of the Guiding Opinions is undoubtedly an affirmation of the right to legitimate defense, which is of great concern to the public at this stage. It is not only an encouragement to ordinary people who are brave enough to implement legitimate defense, but also gives judicial personnel the courage to boldly recognize legitimate defense. Affirming the exercise of the right to legitimate defense makes the infringing acts of illegal infringers not protected by law, and also makes potential criminals fearful of the consequences of illegal infringements and dare not easily touch the bottom line of the law; at the same time, it also allows the general public to realize that justice should not bow to evil, see the positive significance of legitimate defense, and is of great significance to people's peaceful life and enhanced sense of security.