军事斗争行为的法律分析

Analyzing the Action of Military Struggle from Juristic Perspective

随着科技的发展,在国际范围的军事斗争行为中,个人也逐渐成了其法律关系的主体之一,战争权不再是国家的绝对权利,作为国际法的正常主体要负法律责任。从国内法角度看,法与军事斗争具有阶级同源性,它们的政治本质相通,社会作用也相同,虽然某些军事斗争行为不仅具备犯罪构成的外部特性,也确实侵害了法律所保护的利益,但由于其特殊性,行为主体阻却违法应成立。在国际社会中,19世纪式的人道主义干涉现已被国际法确认为非法,并且联合国对一国采取军事斗争行为的合法性条件作了明确规定。

With the development of the science and technology ,in the action of military struggle in international range,individual also has become one of such subject of the law.The sovereign state doesn't have absolute warfare right any longer. As the regular subject of international law, it should take its legal responsibility .From the perspective of municipal law, the law and the military struggle share the same class origin, as well as political essence and social function. Although some actions not only possess external character of crime, but also damage the rights protected by law indeed,its peculiarity makes the subject impede illegality. In the international community, humanitarian intervention of 19th century has been confirmed illegal by international law, moreover, the UN has clearly and definitely defined the legal conditions under which one sovereign state could take the action of military struggle.