正当防卫之"必要"

正当防卫的"限度"问题,既是理论界研究比较薄弱也是实务界比较困惑的问题.正当防卫的"限度"判定,关键问题是要确定防卫行为是否正当,在此基础上建立防卫行为评价标准并确定防卫行为"必要性"的原则;应该结合防卫行为发生的主体条件、现场条件,综合侵害行为的情形和侵害相对人主观因素,坚持主客观相统一的原则来认定.

The Necessity of Legitimate Defence

The limitation of legitimate defence has been a long-time concern which is of insufficient theoretical study and has aroused great confusion in practice. The key task in the definition of the legitimate defence limitation is to determine the elements that may decide the reason of the legitimate defence. Then the standard for legitimate defence assessment and the principles to judge the necessity of the legitimate defence are established.We should take the specific conditions on the spot into consideration and make a comprehensive analysis on the commitment of offense and the subjective factors that may have influnce on the defence execution. Meanwhile the principle of uniting the subject and the object should be scientifically applied.