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Thursday, April 2, 2009

Homicide and self-defense in China

Here's an interesting case just reported in Caijing:

Defendant's home was to be torn down to make way for a new real estate development and defendant and his family (wife and small child) relocated. Defendant refused to move because not satisfied with the compensation offer. (So far, so typical.)

The developer apparently had a reputation for unlawful tearing down and the use of violence, and had even been told to stop by the Benxi city government. (How bad to you have to be to merit that?)

On the day in question, the company sent 40 or 50 people to the defendant's house. (We are apparently NOT talking about police or anyone with any official position, if that matters.) Ten of them broke into the house (i.e., entered by means of violence and without permission). The wife was dragged away and slapped several times. The husband was in bed; when he tried to get out of bed, he was held down by several people. He grabbed a fruit knife that was nearby and stabbed the nearest person, then managed to run off. The person stabbed died in the hospital two days later. (After the defendant ran off, the gang proceeded to tear down the house. Now that's dedication to duty!)

The defendant has been charged with intentional wounding leading to death (故意伤害(致死)). (I don't know offhand which particular article of the Criminal Law this is.) His lawyers are pleading self-defense.

This is going to present a lot of difficulties for the local court, and not just for political reasons (i.e., the developer presumably has a lot of local clout). Although it would be very hard to get a conviction in such a case in the US, my sense is that Chinese legal culture is much less permissive in self-defense claims, and in particular is not particularly moved by the "a man's home is his castle" argument. It is on the contrary very moved by the fact that someone died, and in general, someone is going to have to pay for it to at least some degree. I recall a case from the Xing'an Huilan in which elder son accidentally hit his mother while protecting her from an attack by younger son; he was sentenced to death even though presumably this was the last thing Mom wanted. And there are other cases I recall from much more recent history in which the law seems to have made very unreasonable (in my opinion) demands on the defendant to avoid damaging his attacker. Thus, a verdict against the defendant in this particular case might not be explained simply as the strong getting their way against the weak. I think it might be consistent with what I see as the unsympathetic view of the Chinese legal system to self-defense claims in general, at least when death results. On the other hand, clearly it is not going to go down at all well with a lot of Chinese citizens if the defendant is not exonerated. I predict an epidemic of various illnesses in the Benxi court system that will keep judges in hospital and regrettably unable to hear cases for a while.

Comments?

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Comments

In this regard, it would be interesting to look at cases of wives killing their abusive husbands after years of domestic violence. The Women's Law Studies and Legal Aid Centre of Peking University (Guo Jianmei's organization) has reported that the sentences range wildly from immediate death penalty to 3 years suspended sentence.

Posted by: Linda | Apr 3, 2009 7:24:21 AM

This seems like a pretty clear example of the new Chinese mafia/organized crime syndicate at work. Like many other countries, the construction industry is fertile ground. But I don't think all countries let them use the legal system to their advantage.

Posted by: Matt | Apr 4, 2009 9:36:09 AM

How come the developer is not charged?? What kind of legal system is that??

Posted by: Jimmy C. Wu | Apr 30, 2009 7:56:55 PM

The way it is presented here clearly makes it sound like self-defense. I can only imagine what would have happened had the homeowner stayed.

Posted by: Tim | May 29, 2009 5:03:07 PM

This is typical behavior in China. Two weeks ago, my client was similarly forced from her factory by approx. 80 government "officials" in Nanjing who were attired in surgical masks and disposable rain coats to hide their identities. She was injured as she was pulled from the business and thrown to the ground by 6 men. She had to be hospitalized for 5 days. Again, they wanted the property back to build a residential development and no reasonable compensation was offered let alone any version of due process. The mob proceeded to damage the business until the US embassy in Shanghai was called by my office and immediately got involved. The mob then scurried away like rats leaving 4 ringleaders behind who said they were tearing the building down due to building code violations - a government owned building rented to my client and current on rent and taxes. Just like how the mafia in the US would dispossess someone....beat first and negotiate a bit later...

Posted by: Jeff L. | Jun 2, 2009 11:44:44 PM

Just like the mafia in the US would dispossess someone - are you kidding? No longer is it just the mafia. We have real estate companies in Fayetteville, Arkansas, stepping in and taking farms that have been in people's families for generations and forcing the farmer out. And they aren't behind on their taxes or bills. Why are they kicked out? Because a big apartment complex with a strip mall would be in the best interest of "the public." Funny, I'm a member of "the public" and I don't want someone's home taken away from them on my behalf. Odd how it's never land from a "rich" farmer or land owner that is confiscated - only the ones that can't afford six or seven ivy league lawyers. You dont have to look to China to see people being robbed of their rightful property and homes. The Midwest in the US is full of these instances - minus the violence. But the outcome is still the same.

Posted by: Samantha Storm | Jun 19, 2009 6:45:16 AM

I recently wrote a blog entry on a case in which the court convened a public opinion hearing to help determine the sentence of a woman and her son who killed their physically abusive husband/father. The case seems to show that China's courts are willing to consider past abuse as a partial denfense or extenuating circumstance in the sentencing of homicide defendants. It also shows how the lack of legal protections force abuse victims to adopt extra-legal measures to protect themselves. If you are interested in the case, I discuss it in detail in my blog: Domestic Violence and the Law in China. (I apologize for the crass advertisement.)

Posted by: Larry S. | Sep 27, 2009 4:31:38 PM

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