论文部分内容阅读
一、引言偶然防卫作为教学案例,在现实生活中可以说百年难遇,但却是检验违法论立场的试金石。例如,①甲射杀了乙,但事后查明,乙在被杀的前一刻也正拿着枪对准甲准备射击,而甲完全没有认识到这一点;②甲射杀了乙,但事后查明,乙在被杀的前一刻也正拿着枪对准丙准备射击,而甲完全没有认识到这一点。~([1])是否应当对甲追究刑事责任,如果追究的话,应当如何处罚甲。这就是偶然防卫所面对的和所要解决的问题。围绕这一问题,立足于行为无价值论或者结果无价值论,在日本刑法学界出现了
I. INTRODUCTION Accidental defense, as a teaching case, can be said in real life for a hundred years, but it is the touchstone for testing the position of illegality. For example, ① A shot killed B, but later found out that B was holding a gun just for the moment before he was killed, and A did not realize it at all; ② A shot killed B, but afterwards It was ascertained that B was also shooting a gun at C just before being killed, and A did not realize it at all. ~ ([1]) should be held criminally responsible for a, if held accountable, how to punish a. This is the problem that the occasional defense faces and must solve. Around this issue, based on the behavioral non-value theory or the result of non-value theory, appeared in the Japanese criminal law academic circles