司法实务中“暴力不法侵害才能防卫”的成因与对策

Reasons and Advice for the Wrong Theory in Judicial Practice That Only Violent Infringement Can Be Defended

只能对暴力行为才能防卫,对非暴力侵害不能防卫是司法实践中长期以来形成的错误认识。究其原因有:一是紧迫性要素的判断方法有失偏颇;二是错将“紧迫性”与“暴力性”等同;三是“基本相适应说”盛行且拔高为防卫性质判断之标准。及时总结、反思暴力侵害才能正当防卫的错因并针对性提出对策,有助于实务中准确定性对非暴力性不法侵害的反击行为,同时可保障公民有效行使正当防卫权。

For a long time,judiciary workers wrongly think that people can only defend against violent behavior while nonviolent infringement cannot be defended.There exist three reasons to explain this phenomenon.Firstly,the method of judging urgency is inappropriate;Secondly,it mistakenly equates“urgency”with“violence”;Thirdly,basic adaptation doctrine is widely used and taken as the method to judge justifiable defense.Timely rethinking causes and offering targeted advice will be helpful to judging defense against nonviolent infringement,which can also insure that citizens effectively exercise their right of justifiable defense.