正当防卫与斗殴之区分

The Difference between Legitimate Defense and Fighting

摘要: 正当防卫的认定一直是学术界与实务界研究的热点，同时也是难点问题之一。与正当防卫紧密相关的一个概念——互殴，一直以来都被作为正当防卫的互斥概念，即案件如果被认定为互殴则否定成立正当防卫。而实践中也多运用此种互斥关系，通过将案件定性为互殴案件，而否定正当防卫的成立。实际上，传统含义上的“互殴”与正当防卫并非互斥关系，而是一种包容与被包容的关系。而与正当防卫真正互斥的概念是“斗殴”。斗殴与正当防卫的区分点在于涉事双方根本的主观意图不同，从而决定行为性质的不同。具体认定时，要将目光从双方已经形成的互殴局势前移，重点关注争执或矛盾发生之时的情况。从矛盾的引起、升级以及双方行为方式、强度等客观情况出发，准确判断双方主观意图，从而正确对双方行为进行定性，最终做到正当防卫制度的正确适用。

Abstract: The identification of legitimate defense has always been a hot topic in the academic and practical circles, and it is also one of the difficult issues. A concept closely related to legitimate defense—fighting each other, has always been regarded as the mutually exclusive concept of legitimate defense, that is, if the case is deemed to be fighting each other, it will negate the establishment of legitimate de-fense. In practice, this mutual exclusion relationship is often used to deny the establishment of le-gitimate defense by characterizing the case as a mutual assault case. In fact, the traditional rela-tionship between “mutual assault” and legitimate defense is not exclusive, but inclusive. The con-cept of true mutual exclusion with legitimate defense is “fighting”. The difference between fighting and legitimate defense is that the fundamental subjective intentions of the parties involved are dif-ferent, which determines the nature of the behavior. When making specific determinations, it is necessary to look forward from the fighting situation that the two sides have formed, focusing on the situation when the dispute or contradiction occurs. Proceeding from objective conditions such as the cause and escalation of the contradiction and the behavior and intensity of both parties, we can accurately judge the subjective intentions of both parties, so as to correctly characterize the behav-ior of both parties, and finally achieve the correct application of the legitimate defense system.