无限防卫之界定及其立法化缘由

The Definition and Legislative Bases of Unlimited Defense

我国新刑法第20条第3款所规定的无限防卫,其实质是一种相对的无限防卫,即指有一定条件限制而没有防卫限度限制的正当防卫。无限防卫在我国新刑法中的立法化,有其固有的必然性和合理性:无限防卫之立法化有其人类学的根据,是社会需要的凸现,体现了社会功利优先、兼顾个体公平的价值取向。

The unlimited defense stipulated in the 3rd paragraph of Article 20 in the new Criminal Law of People's Republic of China is in nature a sort of relative unlimited defense. In other words, it is a kind of unlimited defense with certain condition limits, but without limits of defense. The legislation of unlimited defense in the new Criminal Law in China has its inherent inevitability and rationality. It not only has its anthropological basis, it also is a call of society and a signal for values of giving priority to utility and taking justice into consideration.