论防卫挑拨的类型及其处理原则

A Study of the Categories of the Provocative Self-defense

防卫挑拨可分为三种情形,即不法的防卫挑拨、意图式的防卫挑拨与可非难但非意图式的防卫挑拨。就不法的防卫挑拨而言,挑拨者不得主张正当防卫权而对被挑拨者实施反击行为;就意图式的防卫挑拨而言,也应当否定挑拨者享有正当防卫权;就可非难但非意图式的防卫挑拨而言,挑拨者可以主张正当防卫权,但应以"迫不得已无法躲避"为必要。

The provocative self-defense can be divided into illegal provocative self-defense, consciously provocative self-de- fense and provocative self-defense which is unconsciously but is not encouraged by the law. In term of illegal provocative self-de- fense, the provoker can not counter-attack the defender for the reason that he has the fight of self-defense. In term of consciously provocative self-defense, the provoker ought not to have the fight of justifiable self-defense. In term of unconsciously provocative self-defense, the provoker should have the fight of justifiable self-defense, but should be limited if he can avoid the attack.