对无责任能力人侵害反击的定性研究

Qualitative Research on the Counterattack against the Infringement by Irresponsibility People

摘要: 对无责任能力人侵害的反击行为，我国审判实践往往直接将其认定为正当防卫，或是对行为人设定退避义务和限度要求将其反击认定为防卫过当。对无责任能力人侵害反击的行为应当排除构成正当防卫的可能，行为人明知侵害人无责任能力的而进行反击的构成避险行为，行为人不知而主观上有防卫意图进行反击的构成假想防卫。持紧急避险和假想防卫之立场评价对无责任能力人侵害的反击，一方面更加符合刑法的违法性理论和防卫权的正当化原理，另一方面紧急避险制度更加能够解决退避义务和限度要求的问题，更好地达到同时保护被侵害人和弱势群体的效果。

Abstract: The trial practice of our country often directly identifies the counter behavior against the infringement of irresponsibility people Justifiable defense, or setting the obligation and limit of retreat on the actor to require the counterattack as excessive defense. The counter behavior against the infringement of irresponsibility people shall be excluded the possibility of constituting justifiable defense. The actor knows that the infringer has no capacity for responsibility, the counterattack constitutes the necessity defense, the actor does not know but has the subjective defense intention to counterattack structure, his behavior constitutes an imaginary defense. To evaluate the counterattack against the infringement of irresponsible persons from the standpoint of necessity defense and imaginary defense, on the one hand, it is more consistent with the criminal law theory of the illegality and the right of defense principle of legitimation. On the other hand, the system of emergency risk aversion is better able to solve the problem of withdrawal obligations and limit requirements, and better achieve the effect of protecting the victim and the weak.