防卫意思新探

A New Study on Intention of Defence

我国刑法通说对防卫意思的理解标准过高,限制了正当防卫成立的范围,应予修正。犯罪的危害性是结果无价值与行为无价值、客观危害与主观违法意图的统一,防卫意思是阻却防卫行为行为无价值属性的主观正当化要素。防卫意思的内容是认识到防卫行为针对正在发生的不法侵害行为实施,并且没有主导的积极加害意图。防卫意思中不包括对不法侵害人损害结果的希望与追求。防卫意思可以和加害意图共存,过失行为中也可能有积极的防卫意思,可以肯定过失的正当防卫。

The general criminal law theory of our country interprets the intention of defense in an excessive strict way that limited the range of justifiable defense. This should be corrected. The harmfulness of crime is the integration of consequential illegality with behavioral illegality and objective detriment with subjective unlawful intention. Defensive intention is a subjective justifiable factor that eliminates the behavioral illegality in justifiable defense. The content of defensive intention is that the self-defender is aware that the defensive act is conducted against an injurious act, which is being conducted without dominant intention to injure the offender. Defensive intention does not include the factor to pursue harmful consequences on the offender. Intention of defense can be found in involuntary defensive act. Therefore, involuntary justifiable defense exists.