正当防卫的司法偏差及其纠正

Judicial Errors in Deciding Self-defense and Their Rectification

我国刑法中的正当防卫制度对于保护国家、公共利益、公民的人身权利、财产权利或者其他权利具有重要意义。在我国司法实践中,对于正当防卫的认定存在较大的偏差,主要表现为正当防卫与普通犯罪的混淆以及正当防卫与防卫过当的混淆。之所以发生这种情况,原因在于对正当防卫性质缺乏正确认识,此外,还与维稳观念和案件考评机制密切相关。为解决正当防卫的司法偏差,应当树立正确的司法理念,并且通过指导性案例和司法解释等方式,形成正当防卫的司法规则。

Self-defense is an important regime in Chinese criminal law which is significant for protecting state public interest citizens’ personal rights and property rights as well as other rights. However in Chinese judicial practice there are major errors in deciding self-defense which can mainly be summarized as the confusion between self-defense and a common crime and the confusion between self-defense and excessive self-defense. The main reason behind such confusions is the lack of accurate understanding of the nature of self-defense. In addition they are closely connected with the idea of maintaining stability and the mechanism evaluating case performance. In order to eradicate judicial errors in deciding selfdefense correct judicial notion should be established and judicial rules on self-defense should be formed by means of issuing instructing cases and judicial interpretations.