法益平衡视角下涉正当防卫案件说服责任分配新探

A New Exploration of the Allocation of Persuasion Burden in Cases Involving Justifiable Defense from the Perspective of Legal Interest Balance

涉正当防卫案件中的主要事实大体可分为两部分:一是被告人致伤或者致死被害人的事实,二是被害人对被告人实施不法侵害的事实。被告人对于前者基本上供认不讳,控辩双方也往往没有争议。但对于后者,控辩双方每每争议巨大,不少情况下也很难查清。涉正当防卫案件中不法侵害事实存疑的样态常常表现为:要么控辩双方各执一词,要么仅有被告人的一面之词。这一事实真伪不明的存疑特殊性,决定了法益受损风险分配是涉正当防卫案件说服责任的实质,也决定了此类案件中说服责任的本质问题是证明标准的设定问题。为解决司法实践中涉正当防卫案件说服责任分配上的混乱局面,须兼顾被告人和被害人双方法益受损风险的平衡。为此,公诉方所承担的排除不法侵害事实存在的证明标准不应当适用排除合理怀疑的标准,而应当适用高度盖然性标准。

The main facts in cases involving justifiable defense can be broadly divided into two parts:firstly,the fact that the defendant injured or killed the victim,and secondly,the fact that the victim committed an unlawful infringement against the defendant.The defendant generally admits the former,and there is often no dispute between the prosecution and the defense.However,there is often significant controversy between the prosecution and the defense regarding the latter,and it is difficult to ascertain in many cases.The uncertainty of the facts of unlawful infringement in cases involving justifiable defense often manifests as either the prosecution and the defense each sticking to their own version of events,or only the defendant's unilateral statement.The particularity of this uncertainty,where the truth of the facts is unclear,determines that the allocation of the risk of legal interest impairment is the essence of the persuasion burden in cases involving justifiable defense,and also determines that the essential issue of the persuasion burden in such cases is the setting of the standard of proof.To address the confusion in the allocation of the persuasion burden in judicial practice in cases involving justifiable defense,it is necessary to balance the risk of legal interest impairment for both the defendant and the victim.Therefore,the standard of proof for the prosecution to exclude the existence of facts of unlawful infringement should not be the standard of beyond a reasonable doubt,but rather the standard of high probability.