假想防卫过当的几个问题

Several Issues On Excessive Imaginary Defense

假想防卫过当的问题完全在于是否成立故意犯罪,以及可否适用刑法第36条第2款减免其刑这两点。首先,如果行为人所认识或者预见的事实属于该当于正当防卫的事实,由于不存在对于"为违法性奠定基础的事实"的认识,应阻却故意,仅限于对于这种误信存在过失的场合,才成立过失犯罪;其次,即便承认对假想防卫过当有适用第36条第2款的余地,那也应该限于行为人的主观方面与作为防卫过当而被减免刑罚的情形完全相同的场合;而且,还有必要考虑到与假想防卫之间的均衡。另外,因防卫行为而侵害了第三者的法益的,虽不是完全没有成立紧急避险的可能,但能够成立紧急避险的案件是极其有限的;如果否定成立紧急避险,问题就在于针对第三者的法益侵害能否成立故意犯罪。

There are two issues of excessive imaginary defense： whether it constitutes an intentional crime, and whether it could apply Article 36, Paragraph 2 of the Criminal Law to commute a sentence. First, if the facts that the actors cognize and foresee belong to the facts that could constitute justifiable defense, the intention should be refuted because of the absence of the cognition of the facts which lay the foundation of illegality. The negligent crime can be constituted only in the occasion that there is negligence in this misunderstanding. Secondly, even it is possible for excessive imaginary defense to apply Article 36, Paragraph 2, this application should be limited to the occasion that the subjective aspect of actors is in accord with the condition the actors be commuted a sentence as excessive defense. Furthermore, it is necessary to consider the balance with the imaginary defense. Moreover, although it is very rare, it is still possible to constitute act of rescue due to the fact that act of defense infringes the legal interest of the third party. If it does not constitute act of rescue, the question here is whether the infringement of legal interest against the third party can constitute an intentional crime.