| The defender’s duty to retreat is recognized on specific occasions in the theory and practice of criminal law. However, the explanation and argumentation of the type, basis, and application of this duty are insufficient. The duty to retreat in justifiable defense can be divided into the duty to avoid infringement, the duty to accept infringement, and the duty to retreat in a narrow sense. The duty to avoid infringement and the duty to accept infringement are the negation of the right of defense, while the duty to retreat in the narrow sense is a restriction on the right of defense. If there is an opportunity for a victim to obtain public assistance at the time of the occurrence of the unlawful infringement and seeking public assistance will not cause additional behavioral burden and thus reduce the effectiveness of defense, the victim has the duty to avoid the infringement given the blockade of private violence by the principle of state monopoly on violence. If an unlawful infringement is obviously minor or is caused by the victim’s breach of the duty of self-preservation, the factual or attributive prerequisites of the right of defense are not met and the aggrieved party has a duty to accept the infringement. The narrow duty to retreat is based neither on defense nor on abuse of rights but on the principle of solidarity. In the case of unlawful infringement by a person who is not fully accountable and the defense of some of the major personal legal interests, there is room for the existence of the duty to retreat in the narrow sense as a solidarity duty. |
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