特定情境下事后防卫行为的可惩罚性问题探讨

当受害人被卷入严重威胁其人身安全的犯罪事件时,其需要反抗的不仅仅是正在进行的不法侵害,其更要反抗的是施害人凭借暴力而建立的,可以对其生杀予夺的秩序空间.这在一定程度上赋予事后防卫行为以正当性.此外,在特定情境下,犯罪事件的挑起者应承担的责任也能够排除被卷入者事后防卫行为的违法性.选择对特定情境下事后防卫行为不予惩罚的刑法体系虽然存在缺陷,却可在更多方面凸显其价值合理性.

Study on the Issue that whether the Afterwards Defense Should Be Punished in Given Situation

If a victim is involved in criminal events in which his safety is serious threatened, he is not only entitled to fight back when the violation is going on, but also entitled to resist the system which is forcibly constructed by offender. And it justifies the afterwards defense in a certain extent. Furthermore, in given situation, if responsibility should be absolutely ascribed to the person who enkindles the criminal events, the victim who is involved to the events should be released from his afterwards defense. Though the criminal law system has defects when it chooses to forgive the afterwards defense, but it shows its rationality in a good few fields.