反思正当防卫司法认定标准——以“昆山反杀案”切入
|
摘要
正当防卫制度是我国赋予国民在面对不法侵害又无法及时取得公力救济时的合法私力救济权利,由于正当防卫行为往往伴随着不法侵害人伤残甚至死亡,因而实务中对正当防卫的认定率非常低,造成正当防卫条款沦落为睡眠条款。2018年发生的昆山反杀案引起了学界和实务界对刑法第二十条关于正当防卫相关规定的重新审视。要避免正当防卫沦为虚置条款,必须深层次反思造成正当防卫理论和实务脱节的原因。要使正当防卫条款成为"活条款",应提出相对确定的正当防卫制度的适用规则和认定标准,重视矛盾起因以及从防卫人视角进行判断等,以期为实务界提供参考。
Legitimate defense system is a legal self-production right granted to citizens who are confronted with unlawful infringement but unable to obtain public protection in time. However, as legitimate defense behaviors often lead to the injury, disability and even death of the unlawful infringers, the tenable rate of legitimate defense is very low in practice, with the result that the clauses of legitimate defense become specious. In the Kunshan case of2018, a man intended to kill another, but was eventually killed by the mam he intended to infringe. The case resulted in reexamination on the relevant provisions of Article 20 on legitimate defense in the Criminal Law by researchers and those engaged in legal practices. To avoid the clauses on legitimate defense becoming impractical,in-depth reflections on the factors contributing to the mismatching between theory and practice are necessary. To make legitimate defense clauses practical, relatively definite identifying criteria and their applicable rule need to be proposed for the legitimate defense system. Attaching great importance to the causes of contradictions, and judging from the perspective of defenders are also new directions for the practice field's reference.
Legitimate defense system is a legal self-production right granted to citizens who are confronted with unlawful infringement but unable to obtain public protection in time. However, as legitimate defense behaviors often lead to the injury, disability and even death of the unlawful infringers, the tenable rate of legitimate defense is very low in practice, with the result that the clauses of legitimate defense become specious. In the Kunshan case of2018, a man intended to kill another, but was eventually killed by the mam he intended to infringe. The case resulted in reexamination on the relevant provisions of Article 20 on legitimate defense in the Criminal Law by researchers and those engaged in legal practices. To avoid the clauses on legitimate defense becoming impractical,in-depth reflections on the factors contributing to the mismatching between theory and practice are necessary. To make legitimate defense clauses practical, relatively definite identifying criteria and their applicable rule need to be proposed for the legitimate defense system. Attaching great importance to the causes of contradictions, and judging from the perspective of defenders are also new directions for the practice field's reference.
引文
[1]陈璇.正当防卫、维稳优先与结果导向[J].法律科学,2018(3):82.
[2]劳东燕.正当防卫的异化与刑法系统的功能[J].法学家,2018(5):85.
[3]黎宏.刑法学[M].北京:法律出版社,2012:142.
[4]吴允锋.正当防卫限度的判断规则[J].政治与法律,2018(6):82.
[2]劳东燕.正当防卫的异化与刑法系统的功能[J].法学家,2018(5):85.
[3]黎宏.刑法学[M].北京:法律出版社,2012:142.
[4]吴允锋.正当防卫限度的判断规则[J].政治与法律,2018(6):82.