论假想防卫过当

On Imaginatively Unjustifiable Self-Defense

假想防卫过当的场合,根据行为人对过当事实有无认识,可以区分为故意犯和过失犯。由于行为人在对假想侵害进行反击时有防卫过当的认识,因此,其责任的追究,只能在其主观认识即防卫过当的认识限度内进行,否则,有违反责任原则的嫌疑。只是在以防卫过当的规定处罚假想防卫过当时,必须注意其与通常只能作为过失犯定罪量刑而不能"减免处罚"的假想防卫之间的衡平。

One who uses excessive force after he putatively beheves that tactual circumstances justify a defense may be considered as either intentional or negligent, which should be determined by his cognition as to the excessive force. That is to say, criminal liability should be accordance with one＇ s state of mind. However, when applying the mitigation provision of excessive defense to putative defense with excessive force, some balance should be made considering putative defensethat could not benefit from the mitigation provision is ordinarily treated as a negligent crime.