中国古代正当防卫制度研讨——以相关案件为主要视角

A Treatise on Justifiable Defense System in Ancient China: Based on Typical Cases

中国古代的正当防卫制度,存在针对一般不法侵害行为的防卫和针对特定犯罪行为的防卫。针对一般侵害行为的防卫,主要是指斗殴行为中的无辜被打一方的反击行为,即后下手理直者减二等处罚的规定,这一类行为的正当防卫要求被打一方没有过错,因对方先动手被打方才动手反击,限度条件上要求不能殴打致死对方,如果致死对方的不能减等。同时还特别规定,夺获兵器伤人减一等,祖父母、父母被人殴打,子孙紧急救护致人死伤减等处罚的情形。但上述防卫行为仅限于普通人之间,如果有服制关系的亲属之间,则有专条规定。针对特定犯罪行为的防卫,主要是对奸、盗、杀人行为,但古代律文规定,对这些行为,被害人及其亲属、邻居、其他人具有抓捕权,如果在追捕时,对方持执器械抵抗拒捕的,在与其格斗时,致其死亡的,无罪,同时规定了严格的限制条件。另外,中国古代律文还专门规定对夜无故入人家这一特殊情形的防卫,与罪人拒捕格杀勿论条一样,规定了严格的限制条件。中国古代的正当防卫制度的立法精神及诸多规范,在当今仍有研究和借鉴的意义。

The justifiable defense system in ancient china also exists defense against general unlawful infringement,as well as defense against specific violence criminal acts.The justifiable defense against general unlawful infringement mainly means the fighting back of the innocently been beaten party in affray crime,the innocent party was given a mitigated punishment.The justifiable defense against general unlawful infringement requests the beaten party for no-fault,not started the assault,not beaten to death as the limited condition.If the innocent party beats the assault started party to death,he cannot be given a mitigated punishment.In addition,the justifiable defense against general unlawful infringement also includes the condition of seizing weapon from the assault started party and wounded him,which was given a mitigated punishment;as well as the condition of grandparents or parents were beaten,descendant saved immediately,which also got a mitigated punishment.But the justifiable defense against unlawful infringement only applies to ordinary people,not applies to relatives in mourning apparel system,which has its own regulations.As to defense against specific violence criminal acts,which is primarily aimed at adulteries,pirates,committing physical assault or murder,mainly means victims as well as their relatives,neighbors and other people can arrest the criminals,if the criminals resisting arrest with weapons,arrester can fight with him,even if causing death to criminals,do not has to bear criminal responsibilities.But there axe strict limitations.Besides,there are special regulations about defense against home invasion at the dead of night for no reason,still with strict limitations.The legislative spirit and legal norms of Justifiable defense System in Ancient China still worth study and use for reference in our society today.