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关于涉挑衅的互殴行为的定性依据,理论上存在客观说与主观说。其中,客观说包括急迫性欠缺说与附条件的违法招致侵害说,主观说主要为防卫意思欠缺说。客观说不当地赋予了行为人额外的法律义务而缺乏法律依据,同时,客观说所造成的作为正当防卫前提的“不法”与主观方面(防卫意思)在定罪中作用的分离问题始终未妥善解决。在主客观相统一的框架下,将涉挑衅的互殴行为的定性依据确定为防卫意思欠缺说似乎更为可取,防卫意思的欠缺与加害意思的存在基本上是“一体两面”关系。
There are theoretically objective and subjective theories about the qualitative basis of provocative assault. Among them, objectively speaking, including the lack of urgency and the violation of conditions that have led to infringement, the subjective remark mainly refers to the lack of defense. Objectively speaking, it is unfair to endow the perpetrator with additional legal obligations without a legal basis. At the same time, objectively speaking, the issue of separation between the “unscrupulous” as a prerequisite for due diligence and the subjective (defensive) role in criminalization has not been solved settle properly. Under the framework of the unification of subjectivity and objectivity, it seems more advisable to define the qualitative basis of acts of provocation as a defense of defenses. The lack of defensive meaning and the existence of harmful meaning are basically the relations of “one body, two sides”.