自我防卫与相互斗殴的刑事司法判定研究——以个案为线索的分析

如何准确认定防卫案件是长久以来司法实践中的一个疑难问题,1997年《刑法》虽对正当防卫制度作出较大修订,但并未根本改变正当防卫制度在司法实践中的适用困境,其原因在于修订着重解决了防卫行为是否过当的问题,但司法实践中的困境在于如何区分自我防卫与相互斗殴。当前司法实践中较为普遍的"起因是否有责"、"防卫是否不得已"的区分标准,虽具有极强的操作性,却过于简单与绝对,未能深入探求案情,甚至与立法精神有一定背离,使得自我防卫案件往往以相互斗殴结案,而这也与犯罪控制的诉讼模式、司法技术限制、文化上的复仇动机等因素有密切关联。

Criminal Judicial Judgment on Self Defense and Mutual Fight

How to judge justifiable defense accurately is a knotty problem in judicial practice. The criminal law emended the justifiable defense system in 1997; however, the application of this system is still in predicament in judicial practice. The reason is that the amendment of criminal law intended to solve the problem of whether a defensive behavior is suitable or not, but the question is how to distinguish self defense and mutual fight. Standards such as ＂whether the party is responsible for the conflict＂, ＂whether the party is forced to defend himself＂ are feasible and commonly applied in judicial practice, but they are cannot be examined thoroughly, and sometimes violate the spirit of the legislation. cases are judged as mutual fight, and these standards are connect with the control the limitation of judicial technology and the motive of revenge rooted in Culture. too simple, so that the cases Therefore many self defense mode of criminal litigation,