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过剩防卫相关争议主要关注针对刑罚减免根据的不同见解。目前日本刑法中针对防卫行为的研究虽然仍会保有与刑罚减免论相关的意识,却已经开始了向进行整体评价.还是区别评价这一对立观点的转变。以日本最高裁判所的两个判例为契机,整体评价与区别评价的对立开始不限于量的过剩。而是过渡到针对所有过剩防卫的宏观问题。整体分析与区别评价的对立.大体应包括在何种情况下成立过剩防卫,以及过剩防卫的成立界限等两个维度的问题。
The controversies over surplus defense are mainly concerned with different opinions on the basis of penal relief. At present, although the research on defense behavior in Japan’s Criminal Law still retains the awareness of the theory of penalty relief, it has already started to make the overall evaluation, or the change of the opposing evaluation. Taking the two jurisprudence of the Japan Supreme Court as an opportunity, the confrontation between the overall evaluation and the differential evaluation is not limited to the excess of the quantity. It is a transition to the macro-issue of all the excess defenses. The overall analysis and the distinction between evaluation of the opposition should generally be included in the context of the establishment of excess defense, as well as the establishment of the limits of surplus defense and other two dimensions of the problem.