防卫意思与防卫过当罪过形式之探析

防卫意思是成立正当防卫必不可少的主观条件,但其内容不应像我国传统刑法理论所认为的那样:只能出于保护合法权益的动机,而应当是:只要认识到不法侵害的存在,就算防卫人基于其他动机(如报复、教训)而采取的制止不法侵害行为也应当认定其具备正当防卫的主观条件。防卫过当的罪过形式不仅包括间接故意、过于自信的过失和疏忽大意的过失,也不能排除直接故意。

A Study on Defending Wish and Sin Forms of Excessive Defense

Defending wish is a necessary subjective condition for legitimate defense,but it shouldn't be judged by our country's traditional theories of criminal law that the only motive must be protecting legal rights and benefits.In fact,as long as illegal encroachment exists,the defenders' behaviors against unlawful encroachment should be regarded as the subjective conditions of legitimate defense even they are out of such motives as retaliate or lecture.Forms of sin not only include indirect intention,fault resulted from overconfidence and fault caused by negligence,but also direct intention as well.