家庭暴力下受虐妇女杀夫行为的出罪路径研究

Study of the Decriminalization in“Battered Woman Kill Her Husband”in the Context of Domestic Violence

通过数据统计发现,在我国,虽然刑法及相关司法解释肯定受虐妇女在一定条件下可以进行正当防卫,但司法实践中适用正当防卫出罪的受虐妇女杀夫案件十分鲜见,这种立场值得反思。根据紧急权体系中反击型紧急权的法哲学原理,正当防卫和防御性紧急避险都可以针对危险源实施反击,但二者归责程度的不同使得它们可以作为受虐妇女杀夫案在违法性阶层的两条不同的出罪路径,针对不同案情适用恰当的出罪依据。同时,在责任阶层,应当以期待可能性宣告部分突破正当防卫或防御性紧急避险适用边界的受虐妇女的杀夫行为无罪。

Through statistics,it has been found that,in China,although the Criminal Law and related judicial interpretations affirm that battered women can engage in self-defense under certain conditions,cases of battered women killing their husbands in which self-defense has been applied to the offence are rare in judicial practice,a position that is worthy of reflection.According to the legal philosophy principle of counter-emergency right in the emergency right system,both self-defense and defensive emergency avoidance can be used to counter-emergency against the source of danger,but the difference in the degree of attribution of responsibility between the two makes it possible for them to be used as two different paths of offence in the unlawfulness class in the case of battered women killing their husbands,so that the appropriate basis of offence is applied to different cases.At the same time,at the level of responsibility,the husband-killing behaviour of a battered woman who partially breaks the boundaries of the application of self-defense or defensive emergency should be acquitted by the expectation of probability.