我国刑法中的正当防卫

About Justifiable Defence in Chinese Criminal Law

Justifiable defence is the act being exempted from crimes, namely, this act appears to cause damage to lawful rights and interests, but in essential it protects lawful rights and interests. Therefore, Chinese Criminal Law definitely prescribes that this act doesn't constitute crimes.

According to Criminal Law, an act that a person commits to stop an unlawful infringement in order to prevent the interests of the state and the public, or his own or other people's individual rights, rights of property or other rights from being infringed upon by the on-going infringement, thus harming the perpetrator, is justifiable defence, and he shall not bear criminal responsibility.

Justifiable defence must include the following conditions: Firstly, the purpose of this act is to prevent the interests of the state and the public，or a person's own or other people's individual rights, rights of property or other rights from being infringed upon by the on-going infringement. Secondly, there must exist an unlawful infringement, including criminal acts as well as other illegal acts. Thirdly, the unlawful infringement must be on going, which means an unlawful infringement has begun and has not finished yet. Fourthly, an actor can only defend against the person who himself commits unlawful infringement. Finally, the act of justifiable defence can not obvious exceed the limit of necessity and cause serious damage. If a person's act of justifiable defence obvious exceeds the limits of necessity and causes serious damage, which is considered as undue defence, he shall bear criminal responsibility. However, he shall be given a mitigated punishment or be exempted from punishment.

Moreover, in order to effectively protect lawful rights and interests and encourage citizens to carry out actively justifiable defence, our Criminal Law prescribes that if a person acts in defence against an on-going assault, murder, robbery, rape, kidnap and other crime of violence that seriously endangers his personal safety, thus causing injury or death to the perpetrator, it is justifiable defence instead of undue defence, and he shall not bear criminal responsibility. According to this provision, it is not undue defence to the acts in defence against crime of violence that seriously endangers one's personal safety.

Justifiable defence is an important problem in criminal jurisprudence. It is an effective way to protect the rights and interests of the state and people. However, in practice, it is also difficult to judge the limits of justifiable defence sometimes. It need further research by experts of criminal jurisprudence gradually.

正当防卫是排除犯罪性的行为，也就是说，这种行为在表面上给合法权益造成了损害，实质上却是保护了合法权益。因此，我国刑法明文规定这种行为不构成犯罪。

根据刑法，为了使国家、公共利益、本人或者他人的人身、财产和其它权利免受正在进行的不法侵害而采取的制止不法侵害的行为，对不法侵害人造成损害的，属于正当防卫，不负刑事责任。

正当防卫必须具备以下条件：第一，这种行为的目的是为了保护国家、公共利益、本人或者他人的人身、财产和其它权利免受正在进行的不法侵害；第二，必须存在不法侵害行为，包括犯罪行为和其它违法行为；第三，不法侵害必须正在进行，即不法侵害已经开始且尚未结束；第四，防卫必须针对不法侵害人本人；最后，正当防卫行为不能明显超过必要限度造成重大损害，正当防卫明显超过必要限度造成重大损害的，属于防卫过当，应当负刑事责任，但是应当减轻或者免除处罚。

此外，为了有效地保护合法权益，鼓励公民积极进行正当防卫，我国刑法规定对于正在进行的行凶、杀人、抢劫、强奸、绑架以及其它严重危及人身安全的暴力犯罪，采取防卫行为造成不法侵害人伤亡的，属于正当防卫而不是防卫过当，不负刑事责任。据此，对严重危及人身安全的暴力犯罪进行防卫，不存在防卫过当的问题。

正当防卫是刑法学的一个重要问题，是保护国家和人民合法权益的有效手段。但是在实践中，有时也很难判断正当防卫的限度，这就需要刑法学专家不断进一步地研究