Hitting Back Is Not a Mutual Fight: Five Checkpoints in Self-Defence

The other side struck first, yet the person who hit back faces an intentional injury charge. Where is the line between a mutual fight and self-defence? Drawing on Article 20 of the Criminal Law and the 2020 Guiding Opinions, this article breaks down five checkpoints and the key steps to take at the investigation stage.

1. Starting with a case of “hitting back”

A quarrel at a late-night food stall. The other man shoved first and threw the first punch. The client hit back instinctively, and a few blows later the other man's nasal bone was fractured — a “minor injury, grade two” under forensic assessment. Days later the police opened a criminal case for intentional injury. The client and his family kept asking the same question: I was the one who got hit first, so why am I the one under arrest? This question comes up in almost every meeting involving a fight that caused injury. The answer is not found in the simple judgement of “who threw the first punch”, but in the elements of self-defence and the structure of the evidence.

2. The legal basis: three layers of Article 20

Article 20 of the Criminal Law divides defence into three layers. Paragraph 1 is ordinary self-defence: acts taken to stop an ongoing unlawful infringement in order to protect the state, the public interest, or one's own or another's person, property or other rights, causing harm to the infringer, are not criminally liable. Paragraph 2 is excessive defence: where self-defence clearly exceeds the necessary limit and causes significant harm, criminal liability applies, but punishment shall be mitigated or waived. Paragraph 3 is special defence: against ongoing violent crimes such as assault, homicide, robbery, rape or kidnapping, or other violent crimes seriously endangering personal safety, defensive acts causing injury or death to the infringer are not excessive defence and incur no criminal liability. These are not degrees of the same thing but differences in nature: layers one and three mean no crime; layer two means “guilty, but mitigated or exempt”.

3. Five checkpoints in finding self-defence

In practice, both investigators and defence counsel work through five checkpoints. First, cause: was there a real and imminent unlawful infringement, and who provoked it? Second, timing: defence must respond to an infringement “in progress”; preparation beforehand and pursuit afterwards are not defence. Third, target: defence may only be directed at the infringer, not at third parties. Fourth, intent: was the actor trying to stop the infringement, or to injure, retaliate or prove toughness? This is the real dividing line between a mutual fight and self-defence. Fifth, proportionality: did the response “clearly exceed the necessary limit” and “cause significant harm”? Both conditions must be met at once; neither alone makes it excessive. Map these five points onto the evidence, and the nature of the case usually becomes clear.

4. Why “mutual fighting” is found so readily

One practical reason is cost: both sides threw punches, so splitting responsibility and charging intentional injury is the path of least resistance. But the 2020 Guiding Opinions on the Lawful Application of the Self-Defence System, issued jointly by the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security, are explicit: a person cannot be treated as engaged in a mutual fight merely because an argument came first, nor merely because both sides used force. Investigators must examine who used violence first, whether the infringement had ended, and whether the response was reactive and defensive. The other side must also be stated plainly: an arranged fight, retaliation afterwards, chasing someone who has already stopped, or escalating with weapons will rarely support a claim of self-defence. The value of defence work lies precisely in separating “reactive resistance” from “mutual fighting” through evidence, not in slogans in court.

5. Four things to do immediately

First, secure the video before it is overwritten. Footage from night markets, shops and intersections is often kept for only seven to thirty days. Apply in writing to preserve it as soon as possible, specifying the time, location and camera orientation; photograph the scene and note where the cameras are mounted. Second, document injuries and causation. Seek medical treatment promptly and keep records and imaging, while distinguishing which injuries were inflicted by the other side and which by your own side — this determines who infringed on whom. Third, tell the truth, but explain the origin and sequence. Emphasise how the other side struck first, whether you retreated, called for help or tried to leave; these details are the strongest external evidence of defensive intent. Fourth, retain counsel early, at the investigation stage, to meet the client, submit legal opinions, apply for evidence collection and seek to avoid arrest approval or to obtain a non-prosecution decision.

6. Realistic paths for the defence

The paths are progressive: first seek acquittal on self-defence; failing that, seek non-prosecution for insufficient evidence or manifestly minor circumstances; failing that, argue excessive defence with mitigated or waived punishment; and only then fall back to mitigation on sentencing (voluntary surrender, compensation and forgiveness, plea leniency). A specific warning about the wording of settlement agreements. In practice, families anxious to compensate often sign documents stating that they “accept full responsibility” or “voluntarily plead guilty and repent”, and that document later becomes key evidence of guilt. The safer approach: keep the compensation agreement confined to civil compensation, with no admission of criminal liability; if an apology is demanded, limit it to expressing regret over the incident rather than admitting to a crime. And even where excessive defence is found, argue for mitigated or waived punishment rather than simply accepting a custodial sentence.

7. Conclusion

Self-defence is neither “whoever is hurt worse is right” nor “hitting back means a mutual fight”. It is a legal structure that must be built with evidence from the investigation stage: cause, timing, target, intent and proportionality. Miss any one of them, and a person who should never have been prosecuted may end up in the dock. For the person involved, the real danger is not hitting back — it is doing nothing afterwards while the footage disappears, the witnesses disperse and the statements harden. This article is general legal education and does not constitute legal advice on any specific case; if you face a similar situation, retain counsel as early as possible so that the assessment can be made against the evidence on file.

※ This article is general legal information, not legal advice on any specific matter. For your individual case, please consult a lawyer.