我国刑法中不存在无限防卫权

Right of Boundless Defense Does Not Exist in China's Criminal Law

我国刑法第二十条第三款对对于严重危及人身安全的暴力犯罪采取的正当防卫作了特别的规定。学者们普遍认为这在我国确立了无限防卫权 ,并对其是否具有正当性进行了争论。本文作者认为 ,首先应当澄清的是 ,本款规定是否确立了无限防卫权。进而从防卫权的起源与本质、影响防卫权范围的因素等方面进行研究 ,认为我国刑法的规定并不是“无限防卫权”,也同样存在防卫过当的问题。它与一般正当防卫的区别在于对防卫限度的判断标准不同。

Item 20, Paragraph 3 defines self-defense facing serious dangers of violent offense. It is generally understood that right of boundless defense is established in this country, but its justice is still debated. The present author holds that the first task is to clarify whether the right is determined or not. The paper studied its origin and nature, as well as factors affecting its scope of application. It concluded that the criminal law does not specify the right of boundless defense and its difference from self-defense is made according to different standards of judgment.