互殴与正当防卫的区分研究

Research on the Distinction between Brawl and Justifiable Defense

互殴是双方带着伤害故意所实施的不法侵害行为,互殴中双方存在斗殴意图,而正当防卫中是排除斗殴意图的,故而斗殴与防卫二者是相互排斥的关系,这在理论上并无争议。然而在司法实践中,大量本应作为正当防卫处理的案件被错误地认定为互殴,其原因在于一方面司法实践中对于斗殴意图的界定存在错误,将案件中先出手的一方认定为具有斗殴意图是片面的做法,进而导致案件事实的错误认定。另一方面是办案机关为了快速结案而错误地认定案件事实。因此,对互殴概念进行反思尤为重要,斗殴意图是指在逞凶斗狠、寻求刺激等心理的驱使下主动挑起斗殴的心理态度。对双方行为是否属于斗殴,首先应判断事先是否存在斗殴意图,若不存在应对其反击行为性质加以确证,即是否超出了反击的限度,具有明显的侵害意图。

Brawl is an illegal infringement carried out by both sides with injury intentionally. There is an intention to fight in brawl, while the intention to fight is excluded in justifiable defense, so the relationship between brawl and defense is mutually exclusive, which is not controversial in theory. However, in judicial practice, a large number of cases that should be handled as justifiable defense are wrongly identified as brawl, the reason is that on the one hand, there are errors in the definition of the intention of fighting in judicial practice, and it is one-sided to identify the first party in the case as having the intention of fighting, which leads to the wrong identification of the facts of the case. On the other hand, in order to close the case quickly, the case authorities mistakenly identify the facts of the case. Therefore, it is particularly important to reflect on the concept of brawl. The intention of fighting refers to the psychological attitude of taking the initiative to fight under the psychological motivation of fighting ruthlessly and seeking stimulation. Whether the behavior of both sides is a fight, we should first judge whether there is an intention to fight in advance, if there is no need to confirm the nature of its counterattack behavior, that is, whether there is an obvious intention to fight beyond the limit of counterattack.