對無責任能力者進行正當防衛

對無責任能力者的侵害的反擊究竟構成正當防衛還是緊急避險，不是一般違法性論對立的結果，而是取決於正當防衛的合法性根據理論。法益衡量論和二元論都著眼於利益衡量，既無法對正當防衛相比於緊急避險的“尖銳性”做出解釋，也無法妥當處理無責任能力者的侵害問題。正當防衛的根據在於權利和強制權能之間的雙重否定式關聯，因此“不法侵害”必須表達出對他人權利的蔑視。無責任能力者的侵害無法表達這種蔑視，所以不能對其正當防衛，而只能進行防禦性緊急避險。應當構建以責任分配為根據的緊急權體系，承認防禦性緊急避險概念，才能實現對公民的全面保護。

Whether the defense against criminal incapability constitutes self-defense or necessity does not base on the theory of general illegality, however, it is depended on the foundation for the justification of self-defense. The weigh of legal goods doctrine and law confirmative interest doctrine put the emphasis on the weigh of goods, as a result, neither of the theory can explain the ''sharpness'' of selfdefense compared to necessity, nor handle the case properly, in which victim is attacked by criminal incapability. The justification of self-defense lies in the double negation relationship between rights and legitimacy of coercion. Therefore, an ''unlawful infringement'' always contains contempt of others’ rights, which is not an element in the offense of the criminal inability. Thus, the defense against criminal incapability should not be defined as self-defense; rather, it is out of defensive necessity. It should be noted that to fully protect our citizens, a right system for emergency situation based on the distribution of responsibility must be constructed, and the concept of defensive necessity should be acknowledged.