受虐婦女反殺案的出罪事由

Cause of Battered Woman's Counter Killing

在受虐婦女反殺案中，施虐者存在事前的暴力，而且有再次實施暴力的蓋然性，但在被殺害時則處於不能抵抗的狀態。雖然容易為殺害施虐者的受虐婦女找到從寬處罰的理由，但僅此並不夠，還必須為受虐婦女尋找出罪事由。將受虐婦女的反殺行為認定為正當防衛或者阻卻違法的防禦性緊急避險的觀點，不符合我國刑法關於正當防衛與緊急避險的規定，也並非一般化解决方案；將受强制、受虐婦女綜合征以及免責的緊急避險作為出罪理由，也不合適。應當以超法規的責任阻卻事由宣告受虐婦女的反殺行為無罪：在受虐婦女確實缺乏期待可能性的情形下，應當宣告無罪；在受虐婦女並不完全缺乏期待可能性時，應認定受虐婦女對期待可能性存在不可避免的積極錯誤，依然缺乏期待可能性，因而沒有責任，也應宣告無罪。

In cases of counter- attacking committed by the abused women, there was previous violence used by the abuser, and there is high possibility of using repeated violence against the abused women; however, when the abuser is killed by the abused women, he is in a state of being unable to resist. Although it is easy to find excusable causes to justify lenient punishment for an abused woman who kills her abuser, that alone is not sufficient, the justification for the innocent of such abused woman must be found in such case. For opinions that consider the act of counter- attacking committed by the abused women as self-defense or defensive necessity, they are not in accordance with relevant provisions about the justification of self-defense and necessity, nor they are solutions that can be generalized to apply. For opinion that considers the act of counter- attacking committed by the abused women as Battered Women Syndrome and necessity, it is not appropriate neither. For cases that committed by the abused women shall be acquitted as innocent in accordance with lacking the possibility of expectation, which is a defense of extra-statutory excuse, that is, when the abused women completely lack the possibility of expectation, she should be announced as innocent; when the abused women do not completely lack the possibility of expectation, she shall be deemed to have the inevitable positive error of the possibility of expectation, thus should be acquitted either.