防衛過當的實務認定與反思——基於722份刑事判決的分析

The Determination of Excessive Defense by Judicial Practice and its Rethinking: based on the analysis of 722

對於防衛過當的認定，實務中主要存在的問題在於：僅以損害結果來認定防衛過當，將防衛過當普遍認定為故意犯罪，防衛過當免除處罰的適用範圍較窄，還存在重複評價及間接處罰的問題。對於防衛過當的司法認定，應該從以下幾方面改善：其一，從事前的角度，以防衛行為是否為制止不法侵害所必需為標準來界定正當防衛的必要限度。其二，重視防衛意識對防衛過當責任形式的影響，在一般情況下將防衛過當認定為過失犯罪。其三，充分考慮防衛人面臨不法侵害時期待可能性降低的程度，擴大防衛過當免除處罰的適用；其四，分析各種從重或從輕處罰情節的事實基礎和實質根據，避免重複評價和間接處罰。

Concerning the determination of excessive defense, the main problems in judicial practice are: determining excessive defense only based on result of the harm; identifying excessive generally as intentional crimes; limiting the scope of exemption from punishment of excessive defense relatively narrowly as well as re­peated appraisal and indirect punishment. As for the improvement of judicial determination of excessive de­fense ,the following efforts should be made: firstly. from the perspective of ex ante. determining the necessary limits with it as standard whether it is necessary for the act of defense to stop unlawful infringement; secondly, paying due attention to the influence of the awareness of defense on the form of culpability and in general cir­cumstances determining excessive defense as negligent crimes; thirdly, paying sufficient consideration to the extent to which the possibility of anticipation decreased when the defender was faced with unlawful infringement and expanding the scope of exemption from punishment of excessive defense; and fourthly, avoiding repeated appraisal and indirect punishment by analyzing the factual ground and essential foundation of all kinds of cir­cumstances of lesser punishment or heavier punishment.