正当防卫限度的司法认定案件分析——以中国裁判文书网公布的正当防卫案例为样本

Analysis of the Judicial Determination Case of the Limit of Justifiable Defense—Taking the Justifiable Defense Cases Published by the China Judicial Documents Website as a Sample

正当防卫案件在我国一直备受关注,最高院也颁布了一系列正当防卫的指导性案例,这些案例在审判过程中无不牵引着公众的心,这是因为正当防卫是刑法给予公民进行自我保护的法律武器,是公民在面临不法侵害时所能采取的有力手段。但在正当防卫制度刚刚建立起来时,其本身并没有“限度”,从当时的社会现状分析,发生不法侵害后防卫人、侵害人造成的任何后果,都是侵害人自找的。基于这种朴素的复仇观点,并没有人会关注防卫限度的问题。在学界,正当防卫的限度的司法认定也是长期以来一直争论的焦点之一,司法实务中也一直存在以“唯结果论”来认定正当防卫限度的问题,本文欲以实务中的典型案例为切入点,对正当防卫限度的司法认定进行分析。

Justifiable defense cases in our country have been much attention, the Supreme Court also issued a series of guiding cases of justifiable defense, these cases in the trial process of the public heart, this is because the justifiable defense is the criminal law for citizens to self-protection legal weapons, is a citizen in the face of illegal infringement can take powerful means. However, when the system of justifiable defense was just established, there was no “limit”. From the analysis of the social situation at that time, any consequences caused by the defender or the infringer after the illegal infringement were found by the infringer. Based on this naive view of revenge, no one pays attention to the issue of defense limits. In the academic circle, the judicial determination of the limit of justifiable defense is also one of the focuses of debate for a long time. In judicial practice, there has always been a problem of determining the limit of justifiable defense by “only result theory”. This paper intends to analyze the judicial determination of the limit of justifiable defense by taking the typical cases in practice as the starting point.