行为不法与责任阻却:“于欢案”的刑法教义学解答

Illegal behavior and responsibility hindrance: a strafrechtsdogmatik answer to Yu Huan's case

于欢案引发的争议为区分不法与有责提供了新契机:不法是依据法律的行为规范进行的评判,必须受罪刑法定原则之明确性的约束,违法阻却事由是法律激励的行为,不应当承认超法规的违法阻却事由;有责是根据法律的裁判规范进行的评价,必须受罪刑法定原则之价值性的约束,责任阻却事由是法律宽恕的行为,可以承认超法规的责任阻却事由。于欢的行为并非法律激励的行为,属于防卫过当,但于欢在遭受辱母等侵害时实施过当防卫,并不具有期待可能性,具有责任阻却事由,应当宣告无罪。

the disputes arising from Yu Huan case provide a new opportunity for the distinction between illegal and responsibility. The illegal is a judgment based on the conduct codes of the law,It must be bound by the definition of the principle of a legally prescribed punishment for a specified crime,Illegal hindrance is an act motivated by law,the extra-statute reason to hinder the illegality is not allowed. The responsibility is an evaluation based on the adjudication norms of the law. It must be bound by the value of the principle of a legally prescribed punishment for a specified crime,responsibility hindrance is an act of forgiveness by law,the extra-statute reason to hinder the responsibility is allowed. Yu Huan's behavior is not motivated by law,but excessive defense,but Yu Huan and his mother carry out excessive defense when they suffered against violent such as mother was insulted,which does not have excessive defense,it has responsibility hindrance,and should be declared innocent.