誤想過當防衛──試評臺灣高等法院臺南分院110年度上訴字第821號刑事判決及臺灣高等法院91年度上易字第198號刑事判決

Excessive Putative Self-Defense—Comments on No.821 Criminal Judgement (2021) of Tainan Branch of Taiwan High Court and No.91 Criminal Judgement (2002) of Taiwan High Court

誤想過當防衛是事實上不存在現正急迫之不法侵害，但行為人卻錯誤的認為存在，並針對此誤想侵害進行防衛的行為，並且此防衛行為超出行為人假想侵害的情況下所允許的防衛範圍。我國刑法學教科書對此討論甚少，實務界至今尚無此概念之判決。然而在日本無論是刑法學界或實務界，對誤想過當防衛的討論熱烈，並有多件著名判決，可見我國對誤想過當防衛的概念存在輕忽的情況。是以，本文欲討論誤想過當防衛的法律效果，並檢閱兩件以誤想防衛裁判，但卻應當屬誤想過當防衛的實務判決。

Excessive Putative Self-Defense is an act in which there is actually no urgent unlawful infringement, but the perpetrator mistakenly believes that there is, and defends against the misunderstood infringement, and the defensive act exceeds what would be expected under the circumstances of the perpetrator’s imaginary infringement. Permissible defense range. There are few discussions on this issue in textbooks of criminal law, and there is no court decision on this theory of Excessive Putative Self-Defense yet. However, in Japan, whether in the academic or in practice of criminal law, there is a lively discussion on the mistaken belief defense, and there have been many famous judgments. It can be seen that our country has ignored the concept of the mistaken fault defense. Therefore, this article intends to discuss the legal consequences of mistaken defense, and review two cases of practical judgments that were judged as Putative Self-Defense, but should be regarded as Excessive Putative Self-Defense.