重构正当防卫的法理基础

Reconstructing the Jurisprudential Basis of Self-Defense

正当防卫作为私人暴力,与国家暴力垄断原则之间具有内在的紧张关系。根据国家暴力垄断原则,公民无实施私人暴力的原初权利,所有形式的私人暴力都会遭到国家暴力垄断原则的封锁。但在正当防卫情形中,此种封锁会在一定范围内为宪法中的国家保护义务所解除,行为人实施不法侵害时,国家因不在场而无法凭借自身的力量来制止不法侵害、保护法益,此时宪法中的国家保护义务要求立法者必须设置容许规范,授予公民实施私人暴力之权,以避免公民的生命、身体、财产等法益处于完全无保护的状态。由此可知,正当防卫的法理基础便在于国家暴力垄断原则和国家保护义务的互动与调和。据此可处理正当防卫的解释边界、正当防卫的防卫限度、为他人防卫和为公防卫的诠释等疑难问题。

The jurisprudential basis of self-defense is an important issue in the dogmatics of self-defense.The"individualistic approach",the""hyper-individualistic approach"and the""dualistic approach"that exist in the literature attempt to justify self-defense in terms of the positive effects of the act of self-defense,but ignore the nature of self-defense as private violence and the principle that"the end doesn't justify the means".In the context of modern states,self-defense as private violence has an inherent tense relationship with the principle of the state's monopoly on violence,according to which citizens have no original right to use private violence,and all forms of private violence are blocked by the state's monopoly on violence.However,in the case of self-defense,the blockade is lifted to a certain extent by the constitutional duty of state protection,namely,if the state is unable to stop unlawful force and protect the legal interests by its own power because it is not present when the aggressor commits a wrongful act,then the constitutional duty of state protection requires the legislator to establish a permissive norm to grant citizens the right to use private violence,so as to prevent citizens'rights to life,right to person,property rights,and other fundamental rights and interests from being in a completely unprotected state.It can be seen that the jurisprudential basis of self-defense lies in the interaction and reconciliation between the principle of the state's monopoly on violence and the duty of state protection.According to this view,the following specific issues can be explained.Regarding the limits of the interpretation of self-defense,the""principle of legality"should be observed,and the practice of extending the application of the provisions of self-defense by analogy is not tolerated by the principle of the state's monopoly on violence.The limits of self-defense have always been a controversial issue.The approach of"the principle of the state's monopoly on violence+the state's duty to protect"suggests that the right of self-defense should be fully bound by the principle of proportionality because self-defense is a product of the state's duty to protect,which implies the state's interference in the fundamental rights of the aggressor.This approach can also properly interpret"the defense for others"and"the defense for the public".The right of defense for others is not an independent right but is derived from the victim's right to self-defense.This transfer mechanism is consistent with the value orientation of the duty of state protection,namely to provide adequate protection of the legal interests of fundamental rights.As far as the right of defense for the public is concerned,national interests"and"public interests"in Article 20 of China's Criminal Law do not include abstract social order and public order that are not directly related to individual legal interests.Public interests should refer to public property and public interests that can be directly reduced to individual legal interests,while national interests refer to"vital interests of the state that have an impact on the survival of the nation.