上海商学院同学之“昆山龙哥”反杀案分析

   特殊防卫？防卫过当？甚至是不构成防卫。备受社会舆论关注的“昆山龙哥”反杀案虽然早已有了判决结果，但是上海商学院的几位实习生们以该案为视角，针对刑法中的“防卫”问题展开了自己的讨论。
   Special defense?ExcessiveDefense?It doesn't even constitute defense.Although the verdict on the "Kunshan Dragon Brother" anti-killing case, which has attracted much attention from the public, has already reached its verdict, several interns at the Shanghai Business School started their own discussions on the issue of "defense" in the criminal law from this perspective.
贾捷颖同学认为，“昆山龙哥”案当事人于海明的行为构成特殊防卫。
   我国刑法第二十条第三款专门规定了特殊防卫，作为正当防卫的一种，相较于一般正当防卫，具有其自身的特殊性：针对严重危及人身安全的暴力犯罪进行的防卫是特殊防卫，无防卫限度条件和防卫过当的问题。但是其又并不独立于正当防卫，故而特殊防卫的成立必须要符合正当防卫的起因条件、时间条件和对象条件。
在正当防卫面临“不法侵害”的起因条件的基础上，《刑法》第20条第3款对特殊防卫的起因条件认定为“行凶、杀人、抢劫、强奸、绑架以及其他严重危及人身安全的暴力犯罪”，这就表明，除法条所列举的五种行为外，“严重危及人身安全的不法侵害”应当是作为法律权益位阶中最高级别的人身安全权受到威胁，严重程度等同于杀人、抢劫等危害行为，此时即使防卫结果造成重大损失也不属于防卫过当；在特殊防卫的时间条件上，同样应该满足正当防卫的时间条件，即不法侵害正在进行；特殊防卫的对象也应当是正在进行不法侵害的人。
不过，特殊防卫行为造成不法侵害人伤亡虽不构成防卫过当，但也有其限度范围，要求防卫行为必须具备必要性以及可制止性。因此，特殊防卫的限度条件判断主要在于防卫行为自身隐含的限度条件——防卫行为的必要性、可制止性。[1]之所以认定于海明的行为构成特殊防卫，是由于：其一，刘海龙的行为属于行凶，于海明的人身安全处于急迫危害之下；其二，刘海龙的不法侵害正在进行；其三，于海明在刘海龙侵害没有停止的情况下，其反击行为具有必要性、可制止性。
[1]阮绮琳.论特殊防卫的理论与实践[D].外交学院，2019.
   Jia Jieying believed that the behavior of the party in the case of Kunshan Dragon Brother Yu Haiming constituted special defense.
   Article 20, paragraph 3, of China's Criminal Law specifically provides for special defense. As a type of legitimate defense, it has its own special characteristics compared with ordinary legitimate defense: the defense against violent crimes that seriously endanger personal safety is special defense There is no limit to defense and the problem of excessive defense. However, it is not independent of legitimate defense, so the establishment of special defense SHALL meet the cause, time and target conditions of legitimate defense.
   On the basis of the cause of "illegal assault" onjustifiable defense, Article 20 (3) of the Criminal Law identified the cause of special defense as "assault, homicide, robbery, rape, abduction, and other violence that seriously endangers human security" Crime ", which shows that in addition to the five acts listed in the law," illegal violations that seriously endanger personal security "should be threatened as the highest level of personal security rights in the rank of legal rights, with a severity equivalent to murder or robbery And other harmful behaviors, even if the defense results in major losses at this time, it is not considered to be excessive defense; in the time condition of special defense, the time condition of legitimate defense should also be met, that is, illegal violations are in progress; the object of special defense should also be People who have committed unlawful violations.
However, although the special defense acts cause unlawful infringements on the casualties, although they do not constitute excessive defense, they also have their limits. It is required that the defense acts SHALL be necessary and stopable. Therefore, the judgment of the limit conditions of special defense mainly lies in the limit conditions implied by the defense behavior itself—the necessity and deterrence of defense behavior.
   The reason why Yu Haiming's behavior constitutes special defense is that as follows: first, Liu Hailong's behavior belongs to a kind of murder, and Yu Haiming's personal 

冉旋同学则对防卫过当问题展开探讨。
   我国刑法第二十条第二款规定，防卫过当是指正当防卫明显超过必要限度造成重大损害的情形。所以对于防卫过当的要从两个方面判断，一是是否超过必要限度，二是是否造成重大损害，两者是递进关系，即行为人的防卫结果虽然明显超过必要限度，但防卫结果在客观上未造成重大损害，或者行为人的防卫结果虽然造成了客观上的重大损害，但其防卫措施未超过超过必要限度，都不可以认定为防卫过。就以受到社会广泛关注的“8·27昆山持刀砍人案”来说，刘某持刀伤人的行为被公安机关认定为行凶，因为于某并无主观故意伤人，他在客观上不存在不法侵害，他是在被刘某已经砍了两刀情况下，已经威胁到本人的人身权利后，刘某刀脱手他才拿到刀实施自卫行为，在这种刘某虎视眈眈还有旁边的朋友情况下，他根本无法判断刘某是否要继续攻击他，防卫人处于精神高度紧张的状态，不可能像在心情平静状态一样，能够对结果具有准确的掌控和把握，拿起刀出于保护自己的人身权利而攻击刘某也是在情理之中，是一种应激状态下的反应。且在刘某逃跑后，于某并无追赶且返回车拿走刘某手机防止刘某联系其他人，在警察来了主动把刀和手机交给警察均能说明他的行为仅是出于对自己的人身权的保护。如果防卫行为没有超过正当防卫的必要限度的，就应当根据刑法规定，不负刑事责任。但其实长期以来，我国司法机关在防卫过当的司法认定上，存在着很多考虑死者的利益，对防卫人往往作出不利判断，这与我国刑法鼓励公民运用法律武器和违法犯罪作斗争的立法精神是不相符合的。所以尝试进一步在司法实践中明确正当防卫与防卫过当的界限，对于正当防卫的正确适用也具有重要指导意义。
Ran Xuan discussed the issue of excessive defense.
   Paragraph 2 of Article 20 of China's Criminal Law stipulates that excessive defense means a situation where JUSTIFIABLE defense obviously exceeds the necessary limit and causes significant damage. Therefore, for excessive defense, we Shall judge from two aspects, one is whether it exceeds the necessary limit, and the other is whether it causes significant damage. The two are a progressive relationship. Although the defense result of the perpetrator obviously exceeds the necessary limit, the defense result is Objectively, no significant damage was caused, or although the actor's defense results caused objectively significant damage, but his defense measures did not exceed the necessary limit, it could not be considered as defense. In the "8.27 Kunshan Dragon Brother Case", which has received widespread attention from the society, Liu's knife-harming behavior was identified as a murder by public security organs, because Yu did not intentionally hurt Dragon Brother, and he objectively there is no illegal infringement. He was threatened by Liu after having been cut two times by Liu, and his personal rights were threatened. After Liu released his knife, he took the knife to perform self-defense. In the case of his friends, he could n’t judge whether Liu would continue to attack him. The defender was in a state of high tension. It was impossible for him to have accurate control and grasp of the results as he was in a calm state. It is reasonable to protect Liu's personal rights and attack Liu, which is a reaction under stress. And after Liu ran away, Yu did not chase and returned to the car to take Liu ’s mobile phone to prevent Liu from contacting other people. When the police came and took the initiative to hand the knife and mobile phone to the police, it could be shown that his behavior was only against the right Protection of one's personal rights. If the defensive action does not exceed the necessary limit for proper defense, it shall not be held criminally responsible in accordance with the provisions of criminal law. In fact, for a long time, China ’s judiciary has a lot of considerations on the interests of the deceased, and it often makes unfavorable judgments on the defenders. This is in line with China ’s criminal law, which encourages citizens to use legal weapons and fight against crimes is not consistent. Therefore, TRYING to further clarify the boundary between legitimate defense and excessive defense in judicial practice has important guiding significance for the correct application of legitimate defense.
最后，张阐同学以该案为视角，论述此行为不构成防卫。
   具有积极的加害行为和斗殴意图的反击行为，不应当认定为防卫。以昆山龙哥案为例，从正当防卫的构成要件论证如下：
第一、案发当日双方当事人争执的起因系被害人醉酒驾车驶入非机动车道与被告人产生摩擦，被害人一方同行人员主动下车挑衅，被告人于海龙在面对挑衅并无采取积极解决问题的态度，而是在该同行人员被劝走之后以积极追求斗殴的态度走向被害人一行，双方系“不正对不正”，起因条件中不符合防卫起因合法性的要件。
第二、被告人停下自行车走向被害人一行的行为不属于保护自身的合法利益不受侵害，而是为了争霸、泄愤等私欲，被告人的行为的目的不具有正当性。双方在被害人拿出刀之前已经有了斗殴的意图，实现就具有斗殴的反击行为，不能认定为正当防卫。
第三、在斗殴意图的支配下双方都具有积极的加害行为，且被告人的行为系采取措施为了对抗预期的侵害与危险。被害人拿出砍刀的行为于被告人而言是现实的预期（对于他人前来的侵害已有预见但没有回避而是做出准备予以防卫），日本学者认为对抗现实的预期风险能否否定侵害的紧迫性在于行为人是否以合理理由拒绝回避，但在本案中被告人的行为显然不是基于合理理由拒绝回避，不具有防卫的紧迫性。
Finally, from the perspective of the case, Zhang Chan discussed that this behavior did not constitute defense.
   A counterattack with a positive injurious behavior and intent to fight shall not be identified as defensive. Taking the Dragon Brother case in Kunshan as an example, the author argues the elements of legitimate defense as following:
Firstly, the cause of the dispute between the two parties on the day of the incident was that the victim drunk and drove into a non-motorized driveway to cause friction with the defendant. The counterpart on the victim's side took the initiative to get off the vehicle to provocate. However, after the companion was persuaded to go away, he approached the victim with a positive attitude of fighting. The two sides were "unjust vs. unjust", and the cause conditions did not meet the requirements of the legality of the defense cause.
Secondly, the defendant's behavior of stopping the bicycle and going to the victim's party does not belong to protecting his legitimate interests from being infringed, but for the desire of hegemony, venting his anger, etc. The purpose of the defendant's behavior is not justified. Before the victim took out the knife, the two parties already had an intention to fight, and the counterattack behavior of the fight was realized, and it could not be regarded as legitimate defense.
Thirdly, both parties have aggressive acts of aggravation under the domination of the intent of the fight, and the defendant's behavior is to take measures to counteract the expected infringement and danger. The victim ’s behavior with a machete is a realistic expectation for the defendant (the infringement from others has been foreseen but has not been avoided but prepared to defend it). Japanese scholars believe that the expected risk against reality can negate the infringement The urgency lies in whether the actor refused to evade on reasonable grounds, but the defendant's behavior in this case is obviously not to refuse evasion on reasonable grounds, and there is no urgency of defense.