防御性紧急避险制度研究

Study On the Defensive Necessity

对无责任能力人的侵袭予以反击行为应属于防御性紧急避险。防御性紧急避险是针对危险源本身所实施的避险。该种避险制度的产生符合我国刑法主客观相统一的违法观。防御性紧急避险的避险限度应采取"轻于或等于说",即只要避险行为所损害的利益轻于或等于所避免的合法权益价值,就属合法的紧急避险。

Counter-attacking the infringement from a person without ability of responsibility should be considered as defensive necessity. The defensive necessity is to counter-attack the danger source. This kind of necessity accords with the theory of legal violation in China, namely the unification of subjectivity and objectivity. As to the necessity limit, the defensive necessity should take the theory of less or equal damage. Only the damage made by necessity is less or equal the rights and interests value avoided by necessity, the defensive necessity is legal.