论互殴中正当防卫的认定

On the Determination of Justifiable Defense in Mutual Fights

摘要: 司法实务中，司法机关在面对双方或者多方行为人之间相互打斗的情形时，会直接认定其为互殴，习惯性地排除一方是否存在防卫的情形。由于我国司法实务界未能清晰区分互殴和正当防卫的区别，以及传统观念认为互殴排斥正当防卫，并通过行为结果认定行为人的行为性质这一逻辑导致了很多具有防卫性质案件中行为人承担故意伤害甚至故意杀人的刑事责任。本文从互殴与正当防卫的主观方面角度出发，明确互殴行为与正当防卫的区别和联系，从而摆脱认定互殴行为中正当防卫的束缚。

Abstract: In judicial practice, when judicial authorities encounter situations where multiple parties are engaged in mutual fighting, they tend to directly classify it as mutual combat and habitually exclude the possibility of self-defense on the part of any one party. Due to the failure of the judicial practice in China to clearly distinguish the differences between mutual combat and justifiable defense, and the traditional notion that mutual combat precludes justifiable defense, along with the logic of determining the nature of an act based on its outcome, many cases with defensive natures have led to the perpetrators being held criminally responsible for intentional injury or even intentional homicide. This article starts from the subjective aspect of mutual combat and justifiable defense, clarifying the differences and connections between mutual combat and justifiable defense, thereby breaking free from the constraints of identifying justifiable defense in mutual combat.