从于欢案论正当防卫的构成要件及反思重构

On the Constitutive Elements of Justifiable Defense and Reconstruction of Reflection on the Case of Yuhuan

正当防卫是一个老生常谈的话题,对它的讨论从未淡出过我们的视野。纵观我国近十年的司法实践,案件被告人提出的关于正当防卫的辩护意见,法院鲜少承认。有研究者从全国各级法院公示的正当防卫案件做了调查,发现绝大部分案件认定不构成正当防卫,很少部分被认定防卫过当,认定正当防卫的仅为6%。那么是什么原因导致这一现象呢?结合于欢案,尝试从正当防卫的构成要件来解读这一现象,并试图通过对正当防卫构成要件的重构来寻找解决方法,并以此为基础对于欢案进行分析。

Just defense is a cliché topic,and its discussion has never faded out of our horizons. Throughout our country more than 10 years of judicial practice,the defendant made a defense on legitimate defense,but the court rarely admitted. Researchers from the national courts at all levels of public defense cases made a survey, and found that the vast majority of cases do not constitute a legitimate defense and that very few were identified as defensive too,in which only 6% were considered as a legitimate defense. So what is the cause of this phenomenon？ This paper tries to interpret it from the elements of proper defense and find a solution to the problem by reconfiguring the elements of legitimate defense. Then on this basis,the Yuhuan case is analyzed.