受虐妇女杀夫案中的防御性紧急避险之认定

The Recognition of Defensive Emergency Avoidance in the Case of a Battered Woman Who Killed Her Husband

摘要: 对于家庭暴力案件中受虐妇女杀夫行为导致施暴者重伤或者死亡的情况，司法实践中的处理方式通常是定罪轻罚，仅从量刑角度找到从宽处罚的理由，忽略了从定罪角度给予其妥当化的定性评价从而出罪的可能性。通过正当防卫扩张论以及期待可能性理论来评价受虐妇女杀夫行为从而出罪的路径都存在问题。防御性紧急避险为受虐妇女杀夫的行为提供了一条更合适的出罪路径，满足时间条件、不得已条件以及限度条件的，就能够评价为防御性紧急避险而阻却违法。首先，家庭暴力是一种临近的不法攻击或持续性危险。其次，杀夫行为是受虐妇女迫不得已的选择。最后，对杀人行为进行利益衡量。因此，家庭暴力的受暴妇女身处遭受家庭暴力甚至被施暴致死的危险当中，为保护自身以及其他亲人的生命法益，走投无路，趁施暴者不备将其杀死的行为，符合防御性紧急避险的构成要件，可以此作为其出罪事由。为家庭暴力中受虐妇女杀夫行为的定性问题找到一种解决思路，更好地实现公平正义。

Abstract: In the case of domestic violence, the battered woman’s act of killing her husband leads to serious injury or death of the abuser, the way of judicial practice is usually conviction and light punishment, and the reason for lenient punishment is found only from the perspective of sentencing, ignoring the possibility of giving proper qualitative evaluation from the perspective of conviction to convict. There are some problems in evaluating the ways of battered women killing their husbands through the theory of justifiable defense expansion and the theory of expectant possibility. Defensive emergency hedging provides a more appropriate way for battered women to kill their husbands. If it meets the conditions of time, necessity and limitation, it can be evaluated that defensive emergency hedging is illegal. First, domestic violence is an imminent unlawful assault or ongoing danger. Secondly, the act of husband killing is a forced choice for battered women. Finally, the benefit of killing behavior is measured. Therefore, women who are victims of domestic violence are in danger of being subjected to domestic violence or even killed by violence. In order to protect their own lives and the legal interests of other relatives, they have no choice but to kill the abuser when he is unprepared, which meets the constitutive requirements of defensive emergency avoidance and can be used as the cause of their crime. To find a way to solve the qualitative problem of battered women’s husband killing behavior in domestic violence, so as to better realize fairness and justice.