反思与再造:防卫时间条件再思考

Reflection and Reconstruction:Rethinking Opportunity Conditions of Self-defense

现行刑法将防卫时间条件规定为不法侵害“正在进行”,没有考虑防卫人与不法侵害人的力量对比,有可能使防卫权从普惠权变成部分人的特权;没有为考虑时空环境差异留出足够的空间,不利于防卫权的行使;存在视角错位,可能让防卫人进退维谷。学界用“紧迫性”解读“正在进行”,虽然化解了“正在进行”过于僵化的问题,但并未实质改变防卫人难以有效防卫的被动地位。事实表明,防卫时间条件需要重构。“最后机会说”从防卫人的立场出发解读防卫时间条件,延展了防卫时机的空间,兼顾了不法侵害人再度攻击的盖然性,化解了“正在进行”和“紧迫性”不周延的弊端。更重要的是,“最后机会说”注重防卫的有效性,贴近人性,更接地气,顺应时代要求,在保障防卫权充分行使的前提下对防卫进行了合理的限制,应当成为替代“正在进行”和“紧迫性”的合理选择。

The current criminal law stipulates the opportunity condition of self-defense as "ongoing" illegal infringement,which does not consider power difference between defenders and unlawful infringers. It may change the right of defense from the right of inclusiveness to the privileges of some people. The opportunity condition of self-defense does not leave enough space for the consideration of space-time environmental differences,which is not conducive to the exercise of the right of defense. There is a disparity in perspective,which may make the defenders in an almost impossible position. Academic circles interpret "ongoing" with "urgency". Although it resolves the problem that"ongoing" is too rigid,it does not substantially change the passive position of defenders who are difficult to effectively defend. Facts show that the opportunity condition of self-defense needs to be reconstructed. The last chance theory"interprets the opportunity condition of self-defense from the standpoint of the defender,which extends the space of defense opportunity,takes into account the probability of another attack by the unlawful infringer,and resolves the drawbacks of "ongoing" and "urgency". More importantly,the last chance theory pays attention to the effectiveness of defense,which is close to human nature and conforms to the requirements of the times. In addition,the theory makes reasonable restrictions on defense under the premise of ensuring the full exercise of the right of defense. It should be a reasonable choice to replace the "ongoing" and "urgency".