论对精神病人侵害行为反击的定性

On the Characterization of Counterattacks on Mentally Ill People’s Aggression

摘要: 精神病人侵害行为反击行为的定性，主要存在认定为正当防卫和紧急避险的争议。正当防卫权在紧急权体系中具有强势性，以正当防卫评价对精神病人侵害行为的反击将会对正当防卫权不当限制，且精神病人不能表达对法秩序的挑衅，不能将精神病人的侵害行为认定为不法侵害。精神病人的侵害行为属于紧急避险前提中的危险状态，明知是精神病人实施侵害时，可以对其行使防御性紧急避险，判断对精神病人实施的避险行为是否过当，应当衡量在具体情况下保护法益的价值和精神病人受损法益的价值是否失衡。不明知是精神病人而进行反击的行为应尽可能认定为意外事件型的假想防卫，以排除刑事责任。

Abstract: The characterization of the counterattack on the aggression of the mentally ill mainly has the controversy of identifying as self-defense and emergency avoidance. The right of self-defense is strong in the emergency right system, and the evaluation of the counterat-tack on the aggression of the mentally ill with self-defense will unduly restrict the right of self-defense. The mentally ill cannot express the provocation to the legal order, so that the aggres-sion of the mentally ill cannot be recognized as wrongful aggression. The infringement of the men-tally ill belongs to the state of danger in the premise of emergency hedge, and the defensive emer-gency hedge can be exercised against a mentally ill person when the defender knows that the other party is mentally ill. The value of protecting the legal interests and the value of the legal interests damaged by the mentally ill person should be measured on a case-by-case basis to determine whether the hedge is excessive or not. The act of fighting back without knowing that the other party is mentally ill should be recognized as a hypothetical defense of the accident type as far as possible, in order to exclude criminal responsibility.