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česky | english 		This article describes the Private Defense in according with § 29 of Czech Criminal Code and other circumstances precluding illegality. This is the most extensive article engaged in Private Defense at present.

Private Defense definition: "An act, commonly classified as a crime (delict), cannot be classified as a crime (delict) in case of staving off pending or persisting attack against the concern, protected by this law. This defense is not a Private Defense, if it is clearly inadequate to the attack"

Private Defense is one of so-called circumstances precluding illegality. Act, which will be classified as a crime under common conditions, is not classified as a crime under these special circumstances; the trespasser of such act won’t be punished for it.

Other circumstances precluding illegality:
- exigency (§28 of Criminal Code)
- authorized arms usage (§32 of Criminal Code)
- permission granted by involved person (Civil Code)
- legal duties or orders execution
- exercise of a right and profession
- research and development risks


Private defense terms and conditions (§ 29 of Criminal Code):

1. The attack threatens social relations and concerns, protected by the Criminal Code - life, health and property
  • defender is allowed to protect his own concerns, or concerns of somebody else’s
  • attack can be performed by a man or an animal, that is set against somebody else
  • private defense is not acceptable in case of reciprocal attack
  • the attack must be real; not imaginary, in game or as a joke
2. The attack is directly pending or persisting - private defense is not acceptable against attack, which is only being prepared. It is not acceptable when attacked had been finished as well
  • "directly pending" - will begin immediately, it is not necessary to wait for the beginning of the attack. Crime attempt means “directly pending” as well
  • "persisting" - attack is in progress, but is not finished yet. E.g. mugger captured a property by force and is leaving with booty – the attack still persists.
3. Adequacy of defense - "clearly" - Apparently huge disproportion between the way of attack and defense. The intensity of defense must not be excessive to the intensity of attack at a first sight. On the other hand, the defense must be stronger then the attack. It is possible to cause more damage to the attacker then the attack could cause to the defender.

Example:
Two men in a restaurant started hassling and swearing at each other. The first man smacked the second one during the skirmish. So, the second one draw a knife and stabbed the first man three times – twice in a hand, once in a hip. Conditions of Private Defense were NOT fulfilled by the second man, because his defense was clearly inadequate.


Excess of Private Defense conditions:
  • defense is clearly inadequate to the attack
  • defense was not simultaneous with the attack
  • nonexistent attack had been diverted (fictitious, imaginary attack)
DIFFERENCE BETWEEN PRIVATE DEFENSE AND EXIGENCY:

PRIVATE DEFENSE EXIGENCY
attack danger
injury inflicted to the attacker only injury inflicted to anybody, even to innocent
more injury to attacker possible only less injury acceptable
not necessary to try another way of avoiding attack is necessary trying to avoid danger another way


Private defense is a privilege – not a duty – it is not an obligatory upon the defender.



Note: this text was translated and taken over from server Otokodate.