关于正当防卫制度的外国文献高分

巧了我也正在找外国的文献我把我找到的给你你找到的资料也让我看看哈

洛克（1632-1704）是英国古典自由主义的代表人物，他的传世名著《政府论》专门谈国家政府何以需要的问题（即为了保护公民财产权利暨以此当头的其他各种权利）。近代以来，欧美所有的国家俱以洛克的《政府论》为政府存在的合法性依据，因此，洛克的声音值得我们倾听。

在《政府论》（下）第18章中，洛克现身说法，举了两个例子谈其中所蕴含的的法律问题。一，洛克说：如果一个人手持利刃在公路上企图抢劫我的钱包，当时说不定我的口袋里的钱只有十二便士，但我却可以合法地把他杀死。二，假如我把一百英镑交给另一个人，让他在我下车的时候替我拿着，但等到我再度上车时，他却拒绝把钱还给我，反而在我想收回时拔出剑来强力保护那本来属于我的钱。此时，洛克说，我可以合法地将前者杀死，但却不能合法地给后者加以任何伤害。

如果可以比较，在以上情形中，意图不轨的两个人都持刀，都想占有对方财物，而且后者所占有的要比前者大得多。那么，为什么前者置人于死是正当防卫，而同样的结果对后者来说，至少也是防卫过当呢。

洛克的分析是，因为前者运用强力威胁到我的生命，我不能有时间诉诸法律来加以保障，而一旦生命结束，就来不及再诉诸法律了，毕竟法律不能起死回生。这种损失既然是无可补偿的，为防止其发生，自然法便给我以权利来消灭那个使自己与我处于战争状态并以毁灭来威胁我的人。但是，在后一场合，我的生命并不处于危险境地，我可以有诉诸法律的便利，并可以事后通过法律来收回我的一百英镑。

洛克谈论此问题的语境是一个人如何使用强力。在洛克看来，当受害者可以得到法律救济时，他就应该诉诸法律而不是诉诸强力。强力只应该在一个人受到阻碍无法诉诸法律时才被运用。洛克特别说：只有那种使诉诸法律成为不可能的强力，才可以被认为是含有敌意的强力。结合上面两个例子，前一种情形显然比后一种严峻得多。后者持刀是为了保护已经到手的钱，他并不会去要对方的命。前者不然，他并不知道对方藏有多少钱，完全可以（并且这样的案例也很多）以索命的方式获得钱财。因此，这里的问题不是钱的数量多寡，而是生命是否受到迫在眉睫的威胁。

以洛克的逻辑，如果让他来审判此案，这案子的三种可能：故意杀人、防卫过当和正当防卫，他的态度会是什么呢。首先，他会斥责警方水平太臭，甚至是自己给自己找麻烦。无论如何，邓案与故意杀人无关，故意杀人的“意”是在整个事件发生之前，邓与这三位前世无冤、近世无仇，故不存在蓄意之谋。那么，在防卫过当和正当防卫之间，洛克的判断又会是什么呢，如果按照以上的逻辑，是也只能是，邓女正当防卫，正如死者咎由自取。

和洛克的第一种情形相比，邓玉娇面临的虽未危及生命，但却严重危及在邓玉娇看来与生命同等重要的身体，以及由此带来的意志刺激。事实上，人的物质生命就是身体，正如同精神生命就是心灵意志。从邓的行为看，她是个宁死不从的人，你可以要她的命，但休想让她的身体和意志服从。因此，那三个男人的作为，从邓玉娇角度，其实就是在要她的命，她当然以命抗争。另外，当时的情形也已经迫在眉睫，且不说一屋之内，力量的对比是三男一女；也不说，那一叠钞票在头上敲打所造成的精神侮辱；即使根据最保守的报道，她已经两次被按倒在沙发上，第二次她才拿起了刀。可见，当时的情形已经被那三个男人逼至你死我活，除非让邓玉娇满足那三个男人，然而，这比死更让她不能容忍。最后，在这迫在眉睫的危险之前，法律已经彻底帮不了她。一是她不可能像事后追讨钱财一样追讨自己的身体，另外，她所处的那个服务场所也无法让她辩白自己。因此，“只有那种使诉诸法律成为不可能的强力，才可以被认为是含有敌意的强力”，由那三个男人所构成的强力，正符合洛克所说的这种性质。这就可以理解，邓玉娇是在绝望无助的情况下，拿起了刀。不管它会造成什么后果，此一行为只能解释为“正当防卫”。对这一防卫最终作出正当解释的，不是别的，是自然法，这，也正是人间法律的最终依据。

只有一种情况才是防卫过当：当邓玉娇拿起刀，那三个男人落荒而逃，在生命危机解除的情况下，邓却以追杀的方式要了他们的命。然而，此案不是。

在洛克面前，且看我们的法官将如何判决。赠与一句洛克的话：“法律一停止，暴政就开始了。”错判，或有意错判，也是一种停止。

In common law countries and regions in criminal law, self-defense is a common requirement of a general defense, but the classification and the conditions of the respective composition on the same. In the UK criminal law, self-defense can be divided into private defense and suppression of crime, arrest of offenders in the process of self-defense two broad categories. Private defense to defend the personal rights and can be divided into defense and defense of property rights defense. U.S. criminal law is divided into four specific types of self-defense, namely, self-defense, defense third person, defense of property and enforcement defense. Canadian Criminal Code defense of self-defense, including law enforcement, personal protection (physical defense) and defensive properties of three types: (1) Law enforcement defense. Including its seven kinds of situations: 1) implementation of the summons or judgments; 2) implementation of the arrest; 3) prevent escape; 4) The use of force to prevent crime; 5) capture the fault of a particular situation; 6) Put an end to prejudice public order; 7) The use of force to suppress riots. (2) habeas corpus. Is also divided into three situations: 1) by reason of provocation for the attack took place self-defense; 2) attack of self-defense; 3) to prevent attacks. (3) defense of property. Indian Penal Code, specifically in self-defense, including two cases: (1) personal defense means to protect himself or a third person and the inviolability of the person to conduct the defense; (2) property, defense refers to the section in order to protect himself or three were carried out in defense of property. Singapore Penal Code in self-defense is divided into two types: (1) personal defense; (2) property defense. Hong Kong SAR of China's Criminal Law in self-defense is divided into three specific types: (1) self-defense; (2) defense of others; (3) defense of property.

It is clear from, physical defense and defense of property are two basic types of self-defense, but enforcement defense has a certain particularity, it is necessary to be analyzed as a separate type. The following were in accordance with the personal defense, defense of property defense and law enforcement are three types of self-defense constitutes a specific analysis, with a view to enrich and improve our self-defense theory useful.

Elements of physical defense

Personal defense means to protect themselves or others against unlawful infringement of personal defense implemented. Common law countries and regions of the criminal law generally provides for this type of self-defense, which is the most typical type of self-defense. From the common law countries and regions in terms of criminal law, the establishment of the conditions for personal defense include:

(A) a prerequisite for

Common law countries and regions of criminal law tend to feel that there are illegal violations of the existence of a prerequisite for the establishment of personal defense. Such as the United States criminal law that "the person or another person in defense of illegal's body pressing against the danger" is a prerequisite for self-defense. According to "Canadian Criminal Code," Article 34 stipulates that "the victim of unlawful attacks" is a prerequisite for personal defense. Defense of the prerequisites in personal identification, we should note the following specific issues:

1. "The existence of unlawful infringement," the criteria for judging

2. Legitimate violence, whether the defense

3. Suffered unlawful infringement of others whether it can be defensive?

(B) Time condition

Common law countries and regions, most of the criminal law would be illegal for the person being implemented as a physical defense against an established condition. Defense is not a timely manner (including pre-and post-defense defense) can not be set up self-defense. However, the criminal law countries and regions on the defensive start and end of time there is no uniform requirements.

American Criminal Law on the physical conditions of the time defense against the upcoming end to the infringement. The termination of the time for personal defense, the United States criminal law that if the offender effectively stopped the attack and notified of being the aggressor and was the aggressor can not continue to defend and, if the use of violence against those who continue to practice "defensive" violation of have the right to self-defense.

Canada's criminal law defense, personal time conditions began attacks will occur, stop attacking end, but the attack has completed but is likely to happen again, also allows for defense. Such as "Canada's Criminal Code," Article 37 provides that any person, if the Department of the use of force necessary to prevent the attack or to prevent recurring attacks of the need for the use of force to protect themselves or by their protectors against attacks, should be regarded as legitimate .

In common law countries and regions, and most believe the target can only be a personal defense against criminals themselves. In terms of physical defense identification of the object, the main problem is to be noted that the ability of people can no obligation to carry out self-defense. In practice, there may be something completely non-criminal responsibility of people (such as less than 10 years of age or mentally ill) to carry out violent attacks on other people's personal circumstances at this time whether to allow attacks on objects of no criminal responsibility of people in self-defense.

(D) Subjective Conditions

In the common law in most countries and regions of the Penal Code requires that the perpetrator's subjective intent to self-defense as the subjective conditions for personal defense. More specifically, is to require the perpetrator is in the protection of themselves or others from unlawful infringement of personal rights of the legitimate purpose under the domination against the person committed the unlawful acts of a certain degree of harm. Such as "Canada's Criminal Code," Article 35 provides that the intention of the perpetrator only in self-defense, rather than deliberate intent to cause death or serious bodily injury intended to be implemented under the act in order to control the establishment of self-defense. The identification of this element, the main should note the following two points:

1. Provocation defense. English criminal law on the defense to exclude the possibility of self-defense constitutes a provocation. Browne case (Browne) in the Justice Lowry (Lowry) Speaking of self-defense, said: "the necessity of the use of violence by the defendant's conduct can not be caused by a defendant or his conduct may result in the deliberate creation of a a specific situation, there is no need to use violence. "Specifically, where a defendant with the intent to provoke people against attack, and then there is the destination to be" self-defense ", it can not justify the establishment of self-defense. American Criminal Law also ruled out the possibility of self-defense constitutes a defense of provocation, such as the New York State Penal Code clearly sets out this principle. "Canadian Criminal Code," Article 34 explicitly excluded due to provocation of attacks took place in self-defense possibilities. On this issue should be noted that: violence by the defendant arising out of acts does not necessarily come to his subjective intent does not exist on the conclusions of self-defense. In the following two cases, although the violence is caused by the defendant's conduct, but the defendant's self-defense can still constitute a self-defense: first, subjectively, did not foresee their actions would provoke violence. In the UK criminal law, is generally believed that, objectively speaking, even if the violence caused by the defendant's conduct, but if the defendant subjectively, did not foresee his actions will lead to perpetrators of attacks against him, he can not be deprived of self-defense. In this case, its perpetrators can be set up self-defense self-defense. Secondly, although their behavior may be expected to cause violence, but the level of violence beyond its expected. In this case, the defendant can still have the right to self-defense. In the United States criminal law, in normal circumstances, the aggressor not entitled to pursue its own defense, but the defense is clearly excessive in the circumstances that the violation of the right to self-defense, that is, if the perpetrator of violence is apparently non-lethal, while the defender but use of lethal violence. Defense by more than the limits of violence has become "illegal", in this case violated the right to self-defense. Canadian Criminal Code to allow illegal under certain circumstances an attacker to enjoy the right to defend itself. "Canadian Criminal Code," the provisions of Article 35, any person who, without justification to attack others, but the start was not with intent to cause death or serious bodily injury or provoke others to attack its own without justification, in the case of the use of the following circumstances on the attack of force, can be regarded as legitimate: First, the use of force by the Department of: (a) because of the person under their attack or provocation of violence, death or serious bodily injury to harbor a reasonable fear, and (b) there are reasonable grounds to believe that the to protect themselves from death or serious personal injury, unnecessary; secondly, to protect themselves from death or serious bodily harm before the formation of the necessity not trying to cause death or serious bodily injury; the Third, to protect themselves from death or the necessity of serious personal injury arising prior to try their best to refuse to further conflict and to stop or give way.

2. Accidental defense

In particular, the occasional defense refers to the objective of the perpetrators are or will be personal to the defendant or others violated, but the defendant did not subjectively aware of this, its for the purpose of the illegal infringement of the perpetrators use of force, played a physical defense of objective results. English criminal law that the legitimacy of the defense no understanding of the relevant factors of accidental defense does not constitute self-defense. As Williams (Williams) case, the defendant had stressed the intention of self-defense in the establishment of the important position of self-defense that the defendant failed to recognize the use of violence to prove its relevance as a legitimate factors exist, self-defense provisions do not apply.