期待可能性在正当防卫中的适用问题——基于昆山砍人案、于欢案等案件的分析与反思

Research on the Applicability of Expectation Possibility in Justifiable Defense:Based on the Analysis and Reflection of Cases Such as Kunshan Hacking Case and Yuhuan Case

正当防卫是我国刑法规定的违法阻却事由,也是法律赋予公民的法定自卫权。由于认定标准过于机械化和司法理念固化等原因,正当防卫在司法实践中的认定率极低。严格要求构成要件的形式符合程度,忽略期待可能性这一基本刑法理论是导致司法认定偏差的重要原因。应当在正当防卫认定的过程中加入期待可能性作为考量因素,纠正司法偏差,缓解情与法的冲突,并以案件现场环境、防卫人心理及认知状况等具体情况作为判断期待可能性的依据。

Justifiable defense is the illegal law in the criminal law, and it is also the right of self-defense granted to citizens by law. However, due to the fact that the certification standards are too mechanized and the judicial concept is solidified, the recognition rate of legitimate defense in judicial practice is extremely low. Strict requirements for the conformity of the form of the constituent elements, ignoring the possibility of expectation, the basic criminal law theory is an important reason for the deviation of judicial recognition. In the process of legitimate defense identification, the expectation possibility should be added as a consideration factor to correct judicial deviation and ease the conflict between the situation and the law. The specific circumstances such as the scene environment, the mentality of the defender and the cognitive status are used as the basis for judging the possibility of expectation.