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本文主要研究正当防卫是否应纳入先行行为体系及其条件。先行行为体系和正当防卫的关系的明晰,有利于刑法机能的实现、社会秩序的良性运转。本文指出认定正当防卫纳入先行行为体系及其条件,应结合以下方面:是否属于一般正当防卫、主观上是否具备期待可能性、履行救助义务的可能性、法益的客观紧迫危险程度等。据此,不仅能够精确地界定正当防卫纳入先行行为的主客观条件,并且能充分地发挥刑法的法益保护和利益平衡机能。
This article mainly studies whether legitimate defense should be included in the system of preemptive behavior and its conditions. The clear relationship between the first conduct system and the justifiable defense is conducive to the realization of criminal law functions and the healthy functioning of the social order. This article points out that admitting legitimate defense into the system of precedent behavior and its conditions should be combined with the following aspects: whether it belongs to general legitimate defense, the possibility of looking forward to the subjective expectation, the possibility of fulfilling the aid obligation, the objective urgency and danger of legal interest. Accordingly, not only the subjective and objective conditions for the incorporation of due diligence into prior acts can be precisely defined, but also the legal protection of interests and the balance of interests can be fully exerted.