| 英文摘要 |
This article draws upon Professor Luís Greco’s research “Notwehr undProportionalität” to initiate an academic conversation concerning comparative law andlegal methodology. Greco, on the one hand, dissents the mainstream of criminal legaltheory which sees self-defence as the mean to retain the legal order, while on the otherhand, criticizes the lesser-prevailing suggestion to apply proportionality as the boundary ofself-defence. Instead, Greco advocates that it is special sacrifice that should be thetheoretical foundation and criterion of self-defence. This article consents that it isunnecessary to frame self-defence for the purpose of maintaining the legal order. It alsoagrees there is discoursal difficulty to employ proportionality to restrict the application ofself-defence. However, this article holds that it will be challenging to determine if thereexists an excessive force in self-defence in accordance with the doctrine of specialsacrifice. Eventually, it argues that to draw on proportionality in the field of criminal lawindicates the possibility to open up a new approach for the comparative legal studiesbetween criminal and constitutional law. Since criminal law and constitutional law are allintent on restraining state power and protecting basic rights, the comparative studiesbetween them should proceed on this ground. |
