| 英文摘要 |
Shall right to self-defense be restricted by the principle of proportionality? If so, howshall we justify such restriction? Regarding the two foregoing questions, the majorityopinion and common criticism in Germany have a common fundamental proposition: theprinciple of superior interests, which is also based on collectivism (i.e. the society issuperior to individuals). However, this perspective contradicts with the currentindividualistic constitutional thoughts. Professor Greco attempts to propose another way ofdiscourse in this article: Starting from individualism, the right to self-defense shall bedefined as a derivative right of the subjective right. Consequently, any restriction imposedagainst the right to self-defense shall be deemed as the “special sacrifice for publicinterest” under the public law. If the government wishes to restrict the said right inindividual cases, it shall not only provide reasoning for the person’s sacrifice, but alsooffer appropriate compensation (as the case of eminent domain). |
