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Defensive Ruling

Law to safeguard citizens from prosecution has a checkered past

09·28·2018

A “road rage” incident involving a muscled thug in a BMW and a 41-year-old cyclist was always going to end badly. Many in China are surprised, though, that it was the aggressor, Liu Hailong, who ended up dead—and that prosecutors freed the cyclist from legal censure, since he had acted in self-defense.

The incident, captured on surveillance footage, began when Liu’s sedan hit Yu Haiming’s bicycle in Kunshan, Jiangsu province, on August 29. Brandishing a machete, an enraged (and drunk) Liu attacked Yu, but the cyclist managed to seize the knife and hacked Liu several times before police arrived; Liu later died at the hospital.

No prosecutor would relish trying to convince a jury that Yu should face jail for manslaughter, particularly after revelations of Liu’s long criminal record for assault and theft. Along with images of his heavily tattooed torso, this strongly suggested the “victim” was a violent career gangster.

But China doesn’t have juries, or even a presumption of innocence. Instead, cases like Yu’s are decided by procurators who keep one eye on the law—and the other on public opinion.

Yu, a restaurant manager with a seemingly spotless past, was hailed as a hero whose only crime was trying to escape death. “Let’s reward him for removing bad guys from society!” Yu’s supporters wrote on Weibo.

Legal opinion was divided. Lawyer Bao Hu told China Daily that Yu’s counterattack, after Liu had already lost the weapon, had crossed the line from self-defense to excessive force.

Last year, the same newspaper commented on the controversial case of a 21-year-old in Shandong province, also called Yu, who fought off four men who’d sexually assaulted his mother while collecting debt, killing one. The paper warned that China’s self-defense should not “become a ‘zombie code’ that is not applicable in practice.” It noted that prosecutors in the Shandong case “responded to public opinion” by ordering a retrial, adding that “it is necessary for the judiciary to take into account the entirety of a case, including the human element.”

China’s self-defense laws have a mixed record, with cases often relying on public outcry to provoke judicial inquiry. In one common case type—a wife killing a violent husband after years of abuse—courts have shown little consistency, with sentences ranging from death to suspended jail time, according to Guo Jianmei of the Legal Aid Center of Peking University.

In 2009, 21-year-old waitress Deng Yujiao was first arrested, then committed to a psychiatric institution, then released, retried, and eventually allowed to walk free for killing a local official who had tried to rape her at a KTV. As with the Kunshan case, public sympathy for Deng prompted authorities to seek a legal resolution: Deng had turned herself in, and killed her assailant in self-defense. In the Kunshan case, experts determined that it was Yu’s first “defensive” blow that severed Liu’s artery and caused the blood loss that killed him.

However, in 2016,  kebab seller Xia Junfeng was executed for killing two municipal management officials (chengguan) alleged to have attacked him. The execution angered many, partly because chengguan are widely loathed for their violent behavior and have been implicated in dozens of deaths and assaults over the years. China’s self-defence laws may not be “zombie,” but don’t always work as they should.

 


Defensive Ruling” is a story from our issue, “The Masculinity Issue”. To read the entire issue, become a subscriber and receive the full magazine. Alternatively, you can purchase the digital version from the iTunes Store.

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