互殴与防卫的界限
发布时间：2019-01-10 18:42
【摘要】：互殴与防卫之间存在着对立关系:互殴可以否定防卫,而防卫则需要排除互殴。在双方互相的对打中,先动手的一方一般属于侵害方,后动手的一方属于防卫方。但是,后动手一方的反击行为,在具有事先斗殴意图的情况下可以否定其行为的防卫性。如果是即时的反击行为,则可以认定其行为具有防卫性。在预期的侵害场合,具有积极的加害意思则否定行为的防卫性。如果是事先准备工具,在受到他人侵害的情况下利用事先准备的工具实施反击行为,则应当认定其行为具有防卫性。
[Abstract]:There is an antagonistic relationship between affray and defense: mutual affray can negate defense, and defense needs to exclude mutual affray. In the fight between the two sides, the first party belongs to the aggrieved party, and the latter party belongs to the defensive side. However, the reactionary counterattack behavior can deny its defensive nature if it has the intention to fight in advance. If it is an immediate counterattack, it can be determined that its behavior is defensive. In the anticipatory violation situation, the positive injurious meaning negates the defensive nature of the behavior. If it is a preparation tool, it should be regarded as defensive if it is used in the case of being attacked by others.
【作者单位】： 北京大学法学院;
【分类号】：D914
，
本文编号：2406662
[Abstract]:There is an antagonistic relationship between affray and defense: mutual affray can negate defense, and defense needs to exclude mutual affray. In the fight between the two sides, the first party belongs to the aggrieved party, and the latter party belongs to the defensive side. However, the reactionary counterattack behavior can deny its defensive nature if it has the intention to fight in advance. If it is an immediate counterattack, it can be determined that its behavior is defensive. In the anticipatory violation situation, the positive injurious meaning negates the defensive nature of the behavior. If it is a preparation tool, it should be regarded as defensive if it is used in the case of being attacked by others.
【作者单位】： 北京大学法学院;
【分类号】：D914
，
本文编号：2406662
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