正当防卫限度判断的适用难题与改进方案

Application Problems and Improvement Scheme of the Judgment on the Limits of Justifiable Defense

正当防卫成立要件是司法审查的指南而非限制,我国现行正当防卫立法采取适当说,司法实务往往对防卫限度采取唯结果论立场,导致不法与有责判断混淆,带来司法实务中倾向于故意犯罪或防卫过当的偏误,对此,今后需要在司法与立法层面予以改进。司法实践当坚持“必需说”的基本教义,重视正当防卫的个别化情景判断。同时,立法需要对正当防卫条款进行修正:一是基于“法律不强人所难”的法理,对防卫过当进行二分,区分需承担刑事责任的防卫过当与不需承担刑事责任的防卫过当,前者即保留现有规定,后者则增加行为人在“高度恐惧、慌乱、愤怒”等期待不能情况下实施防卫过当的,属于责任阻却事由,不承担刑事责任。二是适当明确防卫过当的具体类型,明确不同法益、不同情景下的防卫限度之判断标准个别化。

The essential of establishment for justifiable defense is a guideline rather than a restriction for judicial review.The current legislation of justifiable defense in China applies the doctrine of appropriateness.Judicial practice often takes the position of consequentialist theory on the limits of defense,which leads to the confusion between illegality and liability judgment,and it will bring errors in judicial practice that tend to deliberate crime or excessive defense,in this regard,we need to improve it at the judicial and legislative level in the future.Judicial practice should adhere to the basic doctrine of"necessity''and attach importance to the individual situational judgment of justifiable defense.At the same time,the legislation needs amendments to the provisions of justifiable defense:First,based on the legal principle that"the law does not constrain the people to do things that are beyond their power,we should divide the excessive defense into two parts,and distinguish the excessive defense which needs to bear criminal liability from the excessive defense which does not need to bear criminal liability,the former retains the existing provisions,while the latter adds that the perpetrator who carried out excessive defense under the situations including high panic,flustration,anger,and other unexpectable situations,which belongs to the ground for elimination of liability,does not bear the criminal liability.Second,specific types of excessive defense should be properly defined,and the individualization of judgment criteria of defense limit under different legal interests and circumstances should be also be explicit.