正当防卫限度的判断规则

Rules for Determining the Limit of Self-Defense

重视法益均衡的司法实践,忽视了实施正当防卫不需要满足法益均衡性和补充性。优越利益说和法益欠缺说,不能为防卫行为不需要法益均衡性和补充性提供充足理由。明确正当防卫限度的前提是,区分利益评价基准和利益评价对象。应从正当防卫的制度目的是权利保护和公力救济例外的角度,说明作为权利行使行为的正当防卫的内在限度。对于不具有可恢复性或者恢复原状困难的法益,只要是为保护法益所必需的行为,无需进行利益衡量;对于超出必要限度造成损害,可以根据利益衡量的原理,权衡是否应将其评价为防卫过当。在现实的损害结果确定之际,如果能假定在应然的"必要限度"内的防卫措施造成的损害越轻,该现实的防卫行为趋向于被评价为"明显"超过必要限度。具体判断时,应该考虑两者之间的差额是否明显较大。

Judicial practice that emphasizes the balance of legal interests ignores the fact that self-de- fense does not require the balance and complementariness of legal interests. Superior interest theory and shortage of legal interest theory cannot provide sufficient grounds for the argument that defense behaviors do not require the balance and complementariness of legal interests. The premise of clearing the limit of self- defense is to distinguish the interest evaluation criteria and interest evaluation objects. The internal limit of self-defense as an act of exercising rights shall be expounded from the perspective that the purpose of the self-defense system is to protect rights as an exception to public relief. For legal interests that are not recov- erable or difficult to restore, there is no need to compare interests as long as the acts are necessary for the protection of legal interests; for the acts causing injury beyond limit, the principle of interest comparison can be used to determine whether they should be decided as unjustifiable self-defense. At the time of deter- mining the factual limit is, the more damage result, if the less the damage caused by the defense measure within the assumed possibility there is for the actual the limit. When making a specific judgment, we kinds of damage is obviously significant. defense behavior to be evaluated as ＂obviously＂ beyond should consider whether the difference between the two