警械使用正當性之刑法界限

刑法的正當事由包括依法令之行為、業務上正當行為及正當防衛行為，都是可作為阻卻違法的事由，但在層次上應有所差異，依法令之行為是依法律授權直接可以做；業務上正當行為必須遵守執行業務的作業程序方屬適法；正當防衛必須公權力來不及保護才可以防衛反擊。警械使用為依法令的行為，使用時機屬緊急狀況，且犯罪嫌疑人或使用的交通工具是移動狀況下，在責任認定應採取「最寬容原則」，較符合法律授權與正當性層次規範。合法使用警械，除須符合警械使用條例的規定，且須有正當事由，並符合比例原則的要求。不法使用警械，若是逾越使用警械的範圍，或誤想防衛，其行為並非故意，在責任的認定應以過失來評價。為使警察人員大膽使用警械，並衡平犯罪嫌疑人權利損失，建議增訂合法使用警械，對被告在道義酌量給予補償。 As prescribed in Criminal Code,the due causesbarring people from violating laws include a conduct conferred by law or order, proper conduct in the course of due business as well as legitimate self-defense. However, these three reasons should be examinedat different levels. A conduct conferred by law or order refers to the authority and power directly provided by law; a proper conduct in the course of due business is considered legitimate when operational procedures are followed; while legitimate self-defense occurs when public authority fails to provide protection in time. Use of police weapons is categorized as a conduct performed in accordance with law or order. And the use of weapons by the policeusually occurs under urgent conditions especially when suspects or the transportation tools they use are moving. Therefore, the determination of criminal responsibility should be based on the “maximum tolerance principle”, which meets the levels of legal authority and legitimacy.The use ofweapons by law enforcement officers should abide by the “Use of Police Weapons Act”. In addition, there should be reasonable justification and the use of the principle of proportionality. The action of using policeweapons improperly can result n the suspect's death when the action is either beyond the scope of the Act or a misunderstanding of self-defense, but the action should not be intentional. Hence, the determination of responsibility of the police should be evaluated by the fault liability of the police. To encourage the police to use their lethal force properly, and protect, respect and preserve the human rights and lives of defendants, it is recommended that the amendments of “Use of Police Weapons Act” should be made for the proper use of weapons by the police at their discretion, as well as, a moral compensation for the loss of the defendant.