民事正当防卫制度的去“僵尸化”与理论纠偏——以民刑关系为视角

De-Zombification of Civil Self-defense System and Theory Correction——From the Perspective of Civil-Criminal Relations

正当防卫制度作为民法和刑法的共有制度。梳理司法实践中发现民事正当防卫制度面临"僵尸化"的困境,理论上又陷入"照搬刑法"的误区。民事正当防卫的概念界定应与刑法相区分,强调其权利保护的内涵,本质则属于来源于自然权利且经法律予以确认的一种紧急性权利。民刑关系视角下正当防卫制度在假想防卫、无限防卫权、过剩防卫等特殊规则下有融合亦有分离。在此基础上,实现民事正当防卫制度在司法实践适用上的"去僵尸化",将民事正当防卫制度的对象、客体、行为范围予以类型化;对民事正当防卫制度的时间、限度等条件在利益衡量原则下予以细化。

Self-defense system is the common system of civil law and criminal law. Combing the judicial practice, it is found that the civil self-defense system is faced with the dilemma of zombie, and in theory, it falls into the misunderstanding of"copying criminal law". The definition of civil justifiable defense should be distinguished from criminal law, emphasizing the connotation of the protection of its rights, and its essence is an urgent right from natural rights and confirmed by law. From the perspective of the relationship between the people and the criminal, the self-defense system has both integration and separation under the special rules such as hypothetical defense, unlimited defense right and excessive defense. On this basis, we should realize the"de-Zombification"in the application of the civil self-defense system in judicial practice, classify the object and behavior scope of the civil self-defense system, and refine the time, limit and other conditions of the civil self-defense system under the principle of interest measurement.