Clarification and application of necessity impeding liabilities: from the perspective of murder committed by female victims of domestic violence

In most current judicial cases in which female victims of domestic violence kill their abusive husbands, judges’ consideration of sentencing in the first stage of the adjudication leads to the ignorance of the possibility of innocence. In such cases, notwithstanding the impossibility of applying a justifiable defence due to the absence of ‘in-progress’ illegal invasion, other right of necessity resources, i.e., the necessity, can be taken into account in the case of defence against the risk origin. A victim of domestic violence who is driven to kill her husband meets the legal requirements of defensive necessity. We should not adopt the utilitarian theory of justifying the homicide purely by calculating legal interests. Instead, it should be justified based on the ‘social joint liability’, meaning that the illegality can only be excused when the disadvantage caused by the risk-avoiding action to the other person lies within the limit of social joint responsibility that would be voluntarily borne by a rational person. The risk-avoiding action of disposing of life cannot be excused from illegality because it lies beyond the aforesaid limit. It could trigger, however, the exclusion of criminal liabilities based on its absence of the possibility of anticipation, which does not conflict with the provisions of Article 21 of the criminal Law in China.