我国刑法中的紧急避险与被迫行为关系之多维检视

行为人在受到他人强迫的情况下,实施了符合法益优越原则的侵害行为,是应当按照被迫行为还是紧急避险来加以处理,这突显出被迫行为与紧急避险之间的关系问题在刑法理论及实践上之重要性。对此,通过从刑事立法、理论及司法实务等多维视角对被迫行为与紧急避险的关系加以探讨,应当承认被迫行为属于以期待可能性理论为基础之免责或责任减轻事由,无论其是否符合法益优越原则,均应与紧急避险在本质上加以区别。

On the Relationship of Acts of Rescue and Forced Acts in Chinese Criminal law

In case of being compelled an actor commites an injurious act in comformity with legal interest superiority principle, should such case be dealt with as a act of forced or rescue? This show the importance of relation between the forced acts and acts of rescue in criminal theory and practice. As to this, after studying the relation between the forced acts and act of rescue from many viewpoints of criminal legislation, theory and judicial practice, we should accept that forced acts belong to the grounds for exemption or liability reduction which is based on expectation possibility theory, whether it conforms to legal interest superiority principle, and differs from the act of rescue in essence.