【作者】 王国宾；

【导师】 何鹏；

【作者基本信息】 吉林大学 ， 刑法学， 2007， 博士

【摘要】 正当防卫在刑法理论上具有独特的地位,也是司法实践中令人关注的问题之一。本文立足于刑法解释学,在对正当防卫制度作全面分析的基础上,选取若干典型疑难问题进行深入探讨。文章将通过对正当防卫的理论归属的介绍(作为介绍正当防卫的逻辑起点),正当防卫的法律规范的考察,系统比较分析不同法系正当防卫制度的设定、构成要件特征以及刑事责任规则,通过对正当防卫的理论根据的论述,防卫权正当性的探析,正当防卫成立要件的全面论述,界分几种特殊情况下正当防卫与紧急避险的疑难模糊点,从而全面论述了正当防卫制度的基本内容。刑法第二十条第三款规定了所谓“特殊防卫权”的问题,笔者将此称呼归纳为“特定范围内无限度正当防卫权”,文章对此进行了系统分析,并通过对实践疑难案件的评析进一步加深对特定范围内无限度正当防卫权的微观理解。文章还将对假想防卫、偶合防卫等非法防卫行为以及特定重复侵害行为、特殊主体防卫行为、逆防卫等疑难问题进行了探讨,为司法实践认定正当防卫提供理论素材。最后文章通过对正当防卫制度的立法评析,提出了我国正当防卫制度的立法缺陷,并由此提出了在立法上完善正当防卫制度的路径选择,即在不能立即进行刑法修改情况下,加强司法解释工作则是可行之举;在内容上进一步细化与明晰刑法第二十条之条款内容;在完善正当防卫制度的总体价值取向上保持立法、司法上的协调,培育人们运用正当防卫的法治意识与观念。更多还原

【Abstract】 Self-defense is not only an important topic in criminal law theory, but also a common issue in legal practice. Although research on self-defense has been conducted for a long time, disputes still remains on some issues regarding self-defense and have caused confusion in legal practice. It is very necessary to conduct research on these controversial issues. This paper is completed on previous research results and deals with both theoretical and practical issues on self-defense, with the viewpoints from the author’s perspective.The paper has three parts including eight chapters. First part discusses the basic theory of self-defense; second part deals with some of the practical and theoretical issues; third part, on the basis of previous discussions, analyzes the limitations of our legislation on self-defense and discusses the approaches to fix theses problems.In Civil Law system, self-defense is a behavior that possesses the constituents of a criminal offence but without the illegality. While in our criminal law theory, the research on self-defense has been conducted without the consideration of the elements of criminal offence. We can see this difference from the terms in describing self-defense. The general terms are“a behavior that excludes the elements of social harm”or“a behavior”. Both terms make a reference to the nature of crime. Except a few scholars made a reference to the nature of crime in their research of self-defense, most scholars did not consider the constitution of crime. The author takes self-defense as a cause that excludes the nature of crime, discusses the issue within the constitution of crime and argues that self-defense lacks the constitutive elements of crime.Different law systems have different characteristics on self-defense regulations. Such differences can be seen from the mode of legislation, the subjective constituent, the objective constituent and the burden of criminal responsibility. Through the comparisons between different law systems and different legislations on self-defense between Mainland and Hong Kong, the paper defines the characteristics of self-defense and provides the theoretical materials for further study.What is theoretical basis for the non-criminality of self-defense? It is of crucial importance to conduct research on the legitimacy of self-defense. The paper argues that the legitimacy of self-defense lies only on the fact that“it is legitimate because it is human instinct to use the right of defense to protect himself”, but also on that for the sake of balanced interests, social stability and social order, self-defense should not be abused and should only be used within the limitations of the laws. The legitimacy of self-defense is a result of the combination of nature of self-defense as both a natural right and a legal right.The constitution of self-defense is an important part of the theory of self-defense, and also the focal point of this paper. With the method of criminal interpretation, the paper analyzes the precondition, the subjective element, the objective element and the limitations of self-defense. On the basis of the constitution of self-defense, the paper clears the differences between self-defense and necessity in several specific circumstances, such as the self-defense towards the animal attack, the self-defense towards the attack from people without responsibility, the self-defense towards the damage caused by the third party, the self-defense towards the necessity.The new Criminal Law has made many amendments on self-defense and added Article 20(3), which has raised a lot of controversies among both scholars and legal practitioners. For instance, how to define the nature of this article,“unlimited right of self-defense”,“self-defense within the limitations”,“special right of self-defense”or“unlimited right of self-defense with conditions”. The author deems that the most appropriate definitions would be“unlimited right of self-defense within certain scope”, which illustrates the nature and characteristic of this article. The article elaborates the value judgment, nature, characteristics and significance of regulations of“unlimited right of self-defense within certain scope”and reveals the general theory of self-defense. With the method of article interpretation, the paper analyzes the relations between Article 20(3) and two items above it. It discusses both theoretical and practical issues of self-defense from the perspective of the legislation as a whole. In regards to unlimited right of self-defense within certain scope, the burden of proof, the defense against persons without responsibility and the defense against transforming criminal have been difficult issues . The author’s opinion is that in such circumstances, the burden of proof lies on the prosecution. But if prosecution finds no legitimate excuses for his behavior, the behavior will constitute a crime if the prosecution can prove that it processes the active constituents of crime. The prosecution does not need to prove the constituent of responsibility. It is difficult to apply the principle that there is no self-defense in circumstances of the attack of persons without responsibility. We have to analyze the situation on each case. In circumstance where the object is a transforming criminal, the recognition of self-defense lies on the timing of self-defense. Assuming there is certain timeline in the process of transforming, before the crime is transformed, it is not appropriate to use self-defense. Only when the crime is transformed, it constitutes the object of self-defense. Such a timeline can be defined as the time when the new crime is about to be committed, which differs in different crimes.Illegal defensive behaviors refer to those behaviors that do not process the form or the nature of defense. Such behaviors include imaginative defense, coincidental defense. Imaginative defense refers to the defensive behaviors committed by people who misunderstood the situations. Imaginative defense is not a crime with direct intention. In most cases, imaginative defense is negligent crime or accidents. Only in very specific circumstances, if the damage of the behavior is inappropriate with the offence he imagined and has apparently crossed the line and caused serious injury, such behavior could constitute a (indirect) crime. In regards to the scope of imaginative defense, the author deems that there are imaginative defense on matters (i.e. imaginative defense on the misunderstanding of illegal offence), imaginative defense on timing, and imaginative defense on persons (i.e. imaginative defense on the wrong person). The paper defines the difference between the imaginative defense and other concepts. For example, imaginative defense and the misunderstanding in defense, the imaginative defense and inappropriate timing of defense and defense against third party. Coincidental defense refers to the behavior that was committed on criminal intention or negligence but resulted as a defense. Coincidental defense is actually a crime, either intentional or negligent, but should be given specific considerations on its sentencing.The paper chooses several difficult issues to do research. First, the issue of the nature of the repeated offensive behavior. The paper argues that defense against repeated offensive behavior should be considered within the system of self-defense. The punishment can be alleviated on the basis legal causes. Such a approach can help the public recognize the concept of criminal punishment and hence help consolidate the authority of the criminal law. Second, self-defense by the state officials who perform special functions. The paper argues that the self-defense by state officials who perform special functions is of a special legal nature; the requirement on the constitution of self-defense for state officials who perform special functions is the same on that for normal citizens. But since the power and duty of officials have a special legal nature, the demands on the conditions for self-defense should be somewhat different. Third, whether criminals have the right of self-defense, i.e. the reverse self-defense. The reverse self-defense refers the defense committed by criminal to protect him from over-aggressive defensive behaviors committed by defenders. In emergent circumstance where the legal rights of criminal will be damaged, he should be allowed to conduct self-defense. Such a reverse self-defense is actually contained in meaning of self-defense. The author believes that from the perspective of the protection of human rights, the reverse of self- defense should be recognized by legislation, and so to enable both the state and the criminal to control the over-aggressive defense, putting restrictions both criminals and the defenders. The legitimacy of reverse self-defense has its preconditions. It can only committed towards inappropriate defensive behaviors; at that occasion, the inappropriate defensive behavior was being committed by the defender; the intention of criminal should be avoid the damage from the inappropriate defensive behaviors; it should be committed within certain limitations; it could only be done at certain timing.In the end, the paper analyzes the legislation of self-defense and generalizes the limitations. It presents several suggestions on the perfection of our self-defense system. A good approach is to strengthen the function of judicial interpretation. In regards to the content of laws, more detailed explanation should be given on Article 20. We should also raise public awareness on the use of self-defense to protect their legal interests and the use of private means to maximally protect the legal rights and interests of himself and other people, so to achieve the justice.更多还原