法与不法:比较法视野下的德国判例与“于欢案”一审

Law and Lawlessness:German Jurisprudence in the Field of Comparative Law and the First Instance of “Yu Huan Case”

"于欢案"一审判决引发了学界和实务界关于正当防卫认定标准的大讨论,其成为学界反思司法适用法律问题方面具有里程碑意义的案例,并入选最高院第18批指导性案例。德国柏林墙守卫案裁判始终遵循法律的正义理念,彰显了法的温情与价值。"于欢案"一审,对案件的定罪与量刑缺乏生活经验和法律适用层面的深入考察,未能正确认定正当防卫,导致量刑畸重,影响了裁判的公正性和合理性。为了避免类似行为的再次出现,着眼于法官思维由事理向法理的转变、公正审判与司法公开并行、排除干扰公正司法三个方面的完善,以期裁判者能够秉承崇法精神,依法裁判。

The first instance judgment of ＂Yu Huan case＂ triggered a great discussion on the criteria of the of legitimate defense in the academic and practical circles. It has become a landmark case in the academic circle to reflect on the legal issues of judicial application, and was selected in the 18th batch of guiding cases of the Supreme Court. The judge of German Berlin wall guard case always follows the justice concept of law, which shows the warmth and value of law. In the first trial of ＂Yu Huan case＂, the lack of the investigation of the life experience and legal application of the conviction and sentencing of the case failed to correctly identify the legitimate defense, resulting in the sentencing deformity, which affected the impartiality and rationality of the referee. In order to avoid the recurrence of similar behaviors, focusing on the change from ethics to jurisprudence of the judges＂ thought, paralleling fair trial and judicial openness, and precluding interference with fair justice, the referee can uphold the spirit of advocating the law and judge according to law.