防卫限度判断规则的体系化展开

Systematic Interpretation on the Judgement Rules of Defense Limit

考察2017年至2019年的防卫过当判决,发现71.79%的判决直接认定防卫过当,而经过衡量得出防卫过当结论的判决基本缺乏判断"明显超过必要限度造成重大损害"的步骤和规则。因此,未明确规定防卫限度判断逻辑与具体规则的《依法适用正当防卫制度的指导意见》无法全面解决实践的主要问题。近年研究注重防卫限度判断的构造和逻辑,有助于解决实践问题,但由于缺失统合考量因素的载体和具体衡量途径,理论的可操作性和稳定性有待改善。应基于我国实定法体系、新司法解释、司法经验与理论资源,体系性阐述能有效影响司法的防卫限度判断规则。防卫限度判断规则体系应以必需说为基础立场,将防卫行为与结果视为一体,分步且递进地判断"重大损害""明显超过必要限度"、过当防卫与重大损害的因果关系,过滤式排查防卫过当。其中,"重大损害"应为重伤以上的结果,并予以最先判断以筛查判断范围;"必要限度"应在类型化4种不同位阶法益的基础上,主要衡量不法侵害强度(罪刑)和防卫强度(假定罪刑)的相当性,并主要考量统计发现的20多个因素。该规则体系提供了明确的判断步骤、考量因素及其载体、衡量途径与具体规则,适用于两高相关指导性案例时,表现出优良的可操作性与稳定性。

A review of the 2017-2019 self-defense excessiveness judgment found that 71.79 percent of the judgments directly found that the defense was excessive, while thoseself-defense excessiveness judgements based on considerations lacks the steps and rules on “significantly exceeding the necessary limits to cause significant harm”. Therefore, the Guidance on the Application of the Self-Defense System in Accordance with the Law, which does not clearly define the logic and specific rules of defense limit judgment, cannot comprehensively solve the main problems of practice. Recent studies have focused on the structure and logic of defense limit judgment, which can help to solve practical problems, but the operability and stability of the theory need to be improved due to the lack of carriers and concrete measurement methods of the combined considerations. Based on China’s legal system, new judicial interpretation, judicial experience and theoretical resources, the rules of judgment can effectively influence the defense limits of justice. The rules system of defense limit judgment should take the necessary as the basis position, regard the defensive behavior and the result as a whole, judge step by step the causal relationship between “significant damage”, “obviously exceeding the necessary limit”, defense excessiveness and major damage, and filter-check the defense as well. Among them, “significant damage” should be the result of at least serious injury. And should be judged first to screen the scope of judgment, “necessary limit” should be on the basis of the type of four different levels of legal benefits, the main measure of the intensity of criminal infringement(crime) and defense intensity(presumed crime) of the equivalent, and mainly consider the statistical findings of more than 20 factors. The rule system provides clear judging steps, consideration factors and their carriers, measurement methods and specific rules, and shows excellent operability and stability when applied to two high-related guidance cases.