正当防卫"必要限度"的新界定

对1997年新的刑法与1979年刑法中关于正当防卫限度作对比讨论,得到三方面的结论:一,强化了防卫行为在手段、工具、强度及其后果等方面适度“超过”侵害行为的合法性,其非法性以“明显超过”为边界;二,评价防卫行为是否“明显超过”必要限度的对象只能是一个,即防卫行为所造成的损害结果;以往一并加以考虑的防卫手段、工具、打击强度及其部位等,现在可以在所不问;三,法定的“明显超过”和“重大损害”标准,应以现刑法的相关规定为评判依据,不能主观臆测。增强了刑法规范的适用性。

New Inquiry into the Necessary Extent of Self-Defense

The Criminal Law of the People's Republic of China (1979 Version) featured the "ambiguity" and "infeasibility" as the regulation about the extent of self- defense is concerned. The new Criminal Law of China (1997 Version) has made amendment and modification to the regulations; therefore, notable changes have been made to connation and criteria of the necessary extent regarding the self - defense: First, it strengthens the legality of the over- committing of self- defense against the infringement activities in the aspects of means, tools, intensity and the outcome, etc. and the illegality should be identified with "obviously exceeding". Second, the identification as whether the self- defense activities have "obviously exceeded" the necessary extent is based on one object, namely, the damages done by the self defense. In the past, it was necessary that self- defense means, tools, striking intensity and the parts should also be considered while at present they can be neglected. Third, the legal "obvious exceeding" and "notable damages" standards should be identified pursuant to the related regulations of the current Criminal Law of China other than objective hypothesis. Therefore, the standardized applicability of the Criminal Law was normally expanded .