正当防卫与防卫过当的界限

On the Legal Boundary between Justifiable Defense and Excessive Defense

正当防卫制度的立法规定与司法适用存在一定的脱节,正确激活与依法行使防卫权已然是当前司法政策的一大痛点。在妥善解决正当防卫与防卫过当的司法纠葛中,要从防卫权优先的基本立场出发,树立有利于防卫人的解释立场与价值取向,适度放宽防卫限度,对防卫过当予以必要的"包容";也要从正与恶的对立、合法与不法的制衡角度,立足防卫的正当性透析防卫过当的边界所在。在规范层面,要敢于破除"唯结果论"等司法误区,立足于主客观相统一立场,对明显超过必要限度、造成严重后果这两个核心要素,从行为与结果层面进行综合判断,力求实现个案正义。而特殊防卫没有讨论防卫过当的余地。

There is a certain disconnection between the legislative provisions and the judicial application of justifiable defense system,so correctly activating and exercising the right of defense in accordance with the law has become a major pain point of the current judicial policies. In properly solving the judicial disputes between justifiable defense and excessive defense,it is necessary to start from the basic standpoint of giving priority to defense right,establish a favorable interpretation position and value orientation of defenders,appropriately relax the limitation of defense,and give necessary "tolerance" to excessive defense. Meanwhile,we should also explore the boundaries of excessive defense based on the legitimacy of defense,from the perspectives of the opposition between right and evil and the balance between legal and illegal. At the normative level,it is necessary to courageously get rid of all kinds of judicial misconceptions such as "results-only theory",and make a comprehensive judgment on the two core elements of obviously exceeding the necessary limits and causing serious consequences from the perspective of behavior and results and based on the unity of subjectivity and objectivity,so as to achieve individual justice. Besides,there is no room for discussion of excessive defense in special defense.