防卫过当中的罪量要素——兼论“防卫过当民刑二元化”立法模式的法理依据

The Quantitative Elements in Excessive Defense——The Rationale of Dualistic Legislation Model of Civil and Criminal Legislations on Excessive Defense

防卫过当条款中的"明显""重大"等罪量要素,是我国刑事立法的鲜明特色之一。从一般预防的必要性、司法证明的经济性以及刑事政策效果的合理性等多方面来看,防卫过当的民刑二元化以及防卫过当入罪标准超严格化的立法模式,具有内在的法理依据。关于防卫过当罪量要素的判断,应依次从三个层面展开:一是行为不法。所谓"明显超过必要限度",是指防卫手段的强度或者持续时间比单纯超过必要性边界更进一步地高出一个以上的级别。二是结果不法。无论是针对人身法益还是针对单纯财产法益的损害,都有可能成立"重大损害"。三是责任。慌乱、恐惧和激愤等情绪性出罪事由的免责根据,综合体现在选择合法行为的能力有所下降、一般和特别预防的必要性大幅降低以及不法的严重程度显著削弱三方面;无论弱势还是强势情绪均有免责之可能。

The quantitative elements, such as "obvious", "significant" and others in the excessive defense provisions is one of the distinctive features of Chinese criminal legislation. In terms of the necessity of general prevention, the economy of judicial proof and the rationality of criminal policy effect, the dual civil and criminal punishment of excessive defense and the extra strict standard of criminalization of excessive defense have its legal rationale. The judgment of the quantitative elements of excessive defense should be carried out from three levels in turn: First, the illegal behavior. The so-called "obviously exceeding the necessary limit" means that the intensity or duration of defense means is further higher than that simply exceeding the necessity boundary by more than one degree. Second, the illegal result. It is possible to constitutes "significant damage" either for personal legal interest or for pure property legal interest. Third, the responsibility. The exemption basis of emotional crime causes, such as panic, fear and anger, is comprehensively reflected in three aspects: the ability to choose legal acts has been reduced, the necessity of general and special prevention has been greatly reduced, and the severity of lawlessness has been significantly weakened. Therefore, both weak and strong emotions can be exempted.