生命冲突、紧急避险与责任阻却
陈璇生命冲突、紧急避险与责任阻却
Life Conflict, Necessity and Impediment of Responsibility
期刊名称：《法学研究》
期刊年份：
作者：陈璇
单位：中国人民大学刑事法律科学研究中心
中文关键词：生命冲突;紧急权;防御性紧急避险;攻击性紧急避险;期待可能性
英文关键词：life conflict;right of necessity;defensive necessity;aggressive necessity;Zumutbarkeit
中文摘要：
生命冲突中的杀人行为要么违法，要么因成立紧急避险而被正当化，不可能处于“法外空间”之中。根据宪法中的人权保障、法律面前人人平等以及人格尊严不受侵犯等条款，公民的生命在价值上不得以质量或者数量为标准进行比较。但是，生命冲突中双方生命的值得保护性却可能存在差异。以紧急权体系为分析框架，当冲突一方属于紧急状态的引起者时，其生命的值得保护性会降低，这就为防御性紧急避险中杀人行为的正当化提供了可能；而以攻击性紧急避险为表现形式的杀人行为，则只可能成立责任阻却事由。
英文摘要：
When dealing with cases of life conflict, the most important issue is to clarify three basic premises. First of all, the act of killing in life conflict is either illegal or justified as necessity, thus cannot avoid legal regulation. Secondly, according to the constitutional principles of human rights protection, equality before law, and inviolability of personal dignity, the value of citizens' lives cannot be compared according to qualitative or quantitative standards. Thirdly, in a life conflict, the worthiness of protection between the two sides of conflict could differ. In the framework of necessity right, the worthiness of protection of the life interests of person who causes the emergency will decline, thus creating the possibility to justify the act of killing in defensive necessity. However, there is no room for impediment of responsibility for the act of killing in aggressive necessity. Generally speaking, cases of one person killing another in emergent situation can be divided into two types. When some members of a group facing a common danger are related to the source of danger, so far as they do not have any exclusive domination over the legal interests that lead to the danger or play a positive promotional role in the appearance or rise of the danger, the sacrifice of their lives could be taken as impediment of responsibility only on the basis of lack of Zumutbarkeit. When dealing with cases of shifting of life danger, several issues should be noticed. Firstly, in the cases of using others as human shield, the defendant could be convicted of the crime of intentional killing through indirect perpetration. Secondly, not all those who commit killing under duress should be simply treated as coerced accomplice. There are still possibilities of impediment of illegality or responsibility. And thirdly, an act of necessity taken by a third person who has no close relationship with the rescued person cannot impede responsibility.
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