论对不作为犯罪的正当防卫

On Justifiable Defense against Omission Crime

对不作为犯罪进行正当防卫是正义与秩序的价值体现,刑法第二十条是其法律依据。暴力、胁迫等行为驱使不作为犯改变意志,积极作为的可能性也为不作为犯罪的正当防卫创造了实现可能。对不作为犯罪正当防卫的形式逻辑与对作为犯罪正当防卫不同,因此在认定过程中,对起因、时间、目的、对象和限度条件的认定也与对作为犯罪正当防卫的认定有所差异。防卫不过分苛求限度与有效性同样适用于对不作为犯罪的正当防卫。他人可代替履行义务不影响正当防卫的认定。

Proper defense of inaction crimes is a reflection of the value of justice and order, and Article 20 of the Criminal Law is its legal basis. The possibility that acts of violence, coercion, etc. drive involuntary offenders to change their will and actively act also creates the possibility for the legitimate defense of inaction crimes. The formal logic of the justifiable defense against crime is different from that of the justifiable defense as a crime. Therefore, in the process of identification, the identification of the cause, time, purpose, object, and limit conditions is also different from that of the justifiable defense as a crime. The undemanding limits and effectiveness of defense also apply to the legitimate defense of inaction crimes. Others may perform the obligation instead of affecting the determination of legitimate defense.