侵害人视角下的正当防卫论

为扭转我国正当防卫审判实践中长期存在的唯结果论倾向,有必要从侵害人的视角出发,对正当防卫的教义学研究重新加以审视。正当防卫的本质除了法益保护,还在于侵害人因违反不得侵害他人法益的义务,主动使自己陷入法益冲突的险境,从而使自身法益的值得保护性下降。侵害人法益值得保护性的下降程度影响着防卫权边界的划定,从而与防卫限度的判断密切相关。如果站在实施防卫行为时,综合考量侵害行为给有效防卫造成的困难、侵害人给防卫人的安全带来的危险程度,能够认定防卫行为是为有效、安全地制止不法侵害所需的最低限度反击手段,则侵害人法益的值得保护性归于消灭,除非被损害的法益与被保护的法益在价值上存在极端悬殊的差别。

Study on Self Defense from the Perspective of the Offender

In order to reverse the long-existing tendency of consequentialism in Chinese juridical practice relating to self-defense, it is necessary to re-examine the dogmatic theory of self-defense from the perspective of the victim. On the one hand, the nature of self-defense lies not only in the protection of legal interests, but also in the fact that, through the breach of the duty of not violating others'' legal interest, the victim of the defense actively puts himself into the danger of legal interests conflicts, resulting in the double decline of the defensibility of his interest. On the other hand, the decrease of the degree of the victim''s defensibility has an impact on the delineation of the boundary of self-defense and, therefore, is closely related to the limitation on defense. The more trouble the infringer causes to the effective defense and the higher danger coefficient resulting from his/her harm to the defender''s personal security, the defender has to take more drastic measures in order to remove obstacles and avoid threat and, as a result, the defensibility of the victim declines more sharply and, accordingly, the limitation on defense becomes less strict. Therefore, as long as we could determine, by comprehensively considering the degree of danger to the self-defender and the difficulty in his or her effective self-defense caused by the infringing conduct, that the act of defense is the necessary minimum countermeasure to effectively and safely stop the illegal infringement, then the defensibility of the infringer doesn''t exit any more, except in cases in which there is great disparity between the harm and protect interest.