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我国现行刑法对家庭不法侵害是否能正当防卫未作明确规定,造成在正当防卫上的争论和实践中的困惑。众所周知,正当防卫是刑法赋予公民最重要的权利之一;刑法并未禁止对家庭不法侵害进行正当防卫;而家庭不法侵害与社会上不法侵害从本质上讲性质都是一样;因此,家庭不法侵害与社会上不法侵害应同等评判,对家庭不法侵害能够进行正当防卫。但在家庭中进行正当防卫与在社会上进行正当防卫应区别开来。这样才能保护家庭成员的合法权益,建立平等、和睦的家庭关系。
The current Criminal Law in our country does not make any definite stipulations on whether family illegal infringement can be justified or not, resulting in the debate on the justifiable defense and the puzzles in practice. It is well known that due diligence is one of the most important rights conferred on citizens by criminal law. Criminal law does not forbid the legitimate defense of unlawful infringement of families. The infringement of family is essentially the same in nature as that of social unlawful invasion. Therefore, It should be equally judged against the illegal infringements in the community and should be able to justify its illegal invasion of families. However, the distinction between justifiable defense in the home and the proper defense in the community should be distinguished. Only in this way can we protect the legitimate rights and interests of family members and establish an equal and harmonious family relationship.