论正当防卫的限度

The Limits of Justifiable Defence

正当防卫必要限度的科学定义,应该体现法定性、必要性和相对性三个基本特征。防卫正当与否主要在于防卫人损害的不法侵害人的法益和不法侵害人所欲侵害的防卫人的法益的对比关系,前者等于或小于后者,为正当防卫,前者大于后者,为防卫过当。据此可以顺带得出一个结论:《刑法》第20条第3款规定的并不是无限防卫,而只是正当防卫的一种特殊情形。

The scientific defination of the regulated limits of justifiable defence should be embodied in the 3 basic characteristics:legal regulation, necessity and comparation. The justice of defence is mainly decided by the comparatson result between the legal intrest from the defending person to the infringing person and the legal cost from the infringing person to the defending person:if the former one is smaller or equile to the latter one, then the defence is justifiable defence; while the former is bigger than the latter one, then the defence is the defence exceeding limits. We can then make the conclusion as follows: the 3rd item of the stipulation 20 of the Chinese Criminal Law does not set the system of unlimited defence. This is only an exceotianal situation of the justifiable defence.