假想防卫也存在过当——从一则案例谈起

不法侵害并没有现实存在,行为人误以为存在,基于防卫的意图进行防卫,但防卫限度明显超过必要限度造成重大损害的情形,成立假想防卫过当。"单一错误"形式的假想防卫过当并不阻却故意犯罪的成立,考虑到其存在责任减轻事由,对假想防卫者可以从轻或者减轻处罚。

On Excessive Imaginary Defense

Sometimes the unlawful infringement does not exist in reality, but the doer is under the illusion that it does and takes actions for defense out of the intention of self - defense. When the limit of defense is significantly beyond the extent of self - defense and causes material damage, the excessive imaginary defense occurs. The imagi- nary defense in the form of single mistake does not hinder the establishment of the intentional crime. But due to its reason for mitigating responsibility, the imaginary defender shall be given a lighter or mitigated punishment.