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何强案司法与学界各方所持的立场,深刻反映了对正当防卫成立标准的认知差异,而这正是需在分析案件前结合刑法基本理念厘清的问题。作为斗殴中正当防卫成立的前提条件,自招加害行为必须排除违法非难性;斗殴中成立正当防卫客观上需满足相当性限制,即在必要性和平衡性两方面防范权利滥用;而防卫意思作为正当防卫的主观正当化要素,其判断核心是应对不法侵害的防卫意图。以这些标准检视何强案可得出,何强之行为虽满足正当防卫前提要求,但其未履行回避和消极防御义务并不符合客观方面的平衡性要求,在主观方面不具备对不法侵害的防卫意图,从而不能成立正当防卫。
He Qiang’s judicial and academic positions held by both parties profoundly reflected the cognitive differences in the standards for the establishment of due diligence. This is precisely the problem that needs to be clarified before the analysis of the case in conjunction with the basic concepts of criminal law. As a prerequisite for the establishment of due diligence in the fight, self-incriminating acts must be ruled out of illegitimacy; to establish a justifiable defense during the brawling objective needs to meet the equivalence limit, that is, to prevent abuse of rights in both necessity and balance; and as a defense The core element of justified defense is its defense intentions against unlawful violations. The examination of He Qiang case based on these criteria shows that although He Qiang’s behavior meets the requirements of legitimate defense premise, his failure to fulfill the obligations of avoidance and passive defense does not meet the objective requirements of balance and does not subjectively have no infringement on the law Defensive intent, and thus can not establish a legitimate defense.