正当防卫“合理相信因素”的认定

Determination of the “Reasonable Belief Factor” in Self-Defense

近年来,我国认定是否符合正当防卫紧迫性条件从事后标准转为事前标准判断,即将一个有理性的第三人置于防卫人相同的防卫处境,如果他会做出和防卫人相同的防卫行为,即认定构成正当防卫。但是如何从一般人角度判断是否符合正当防卫紧迫性条件仍然是一个抽象问题,因此应当将一般人标准更加具体化,本文从如果将一般人置身于防卫人相同情形的客观和主观因素进行具体分析,来判断一般人是否会产生与防卫人相同的防卫认识和做出相同的防卫行为,客观因素应当考虑防卫人与受害人之间的生理差异、法益侵害性严重程度、双方人数多少与武器强弱对比、防卫环境封闭性,主观因素应当考虑防卫人平时所处生活环境以及过往经历对其防卫心理的影响。

In recent years, our country has determined whether to meet the urgency of self-defense conditions from the after standard to prior standards judgment, that is, a rational third person in the defender of the same defensive situation, if he will make and the defender of the same defensive behavior, that is determined to constitute self-defense. But how to judge from the perspective of the average person whether to meet the urgency of self-defense is still an abstract problem, so the average person should be more specific standard, this paper from the average person in the same situation as the defender in the objective and subjective factors for a specific analysis, to determine whether the average person will produce the same with the defender of the same understanding of the defense and make the same defensive behavior. Objective factors should take into account the physiological differences between the defender and the victim, the severity of the legal infringement, the number of people on both sides and the strength of the weapons, and the closed nature of the defensive en-vironment, while subjective factors should take into account the impact of the defender’s usual liv-ing environment and past experiences on his or her defensive psychology.