论法确证原则的合理性及其功能

The Reasonableness and the Function of the Principle of Law-confirmation

正当防卫的正当化根据在于个人保护原则和法确证原则,因此二元论具有合理性。离开了法确证原则,优越利益说无法说明正当防卫的正当性。把法确证原则降为法益衡量的一个要素,存在很多不足,也无法说明正当防卫的正当性。在二元论中,个人保护原则是基本原则,影响正当防卫成立条件的认定,具有扩张正当防卫权的功能。法确证原则是补充性原则,与正当防卫的成立条件无关,具有限缩正当防卫权的功能。亦即,正当防卫的起因条件、对象条件、时间条件、限度条件都由个人保护原则决定,法确证原则的功能仅仅在于对正当防卫进行社会伦理限制。

The principle of safeguarding individual rights and the principle of law confirmation are the two bases of justification for self-defense, so the dualism is rational. Without the principle of law-confirmation, the principle of protecting the superior interest will be unable to explain the justification for self-defense. Downgrading the principle of law-confirmation to an element in the balance of legal interests will lead to many problems and also be unable explain the justification for self-defense. In the dualist theory, safeguarding individual rights is the basic principle that affects the establishment of conditions of self-defense and has the function of expanding the right to self-defense. The principle of law-confirmation is a supplementary principle that has nothing to do with the condition of the establishment of self-defense and its only function is to limit the self-defense. Namely, the principle of safeguarding individual rights determines the conditions of the causes, the object, the time and the limit of self-defense, whereas the principle of law-confirmation only imposes social ethical limitations on self-defense.