问: 我因自卫伤人,请问违法了吗?

我国的刑事法典第96和97条文已清楚列明公众有权使用武力进行自卫

  • 其中96条文指出,公众行使自卫权利并非一项罪名,而97条文也写明,每个人都有自卫权,以免遭受身体上的伤害,或阻止财物遭到偷窃抢劫或破坏等。
  • 第98条文也说明,任何人都可进行正当防卫,即使面对不足法定年龄或心智不健全或醉酒者的攻击,都有同样的权利进行自卫。
  • 然而这些防卫受到刑事法典第99条文(1)至(4)的限制。
  • 第99条文列出在什么情形下一个人没有自卫权,即是:
  1. 如果一项行动是由一名公务员在善意及职权下针对一项没有合理造成死亡或重伤忧惧的行为而作出。
  2.  如果一项行动是由一名公务员在善意及职权下发出训令所针对一项没有合理造成死亡或重伤忧惧的行为而作出
  3. 事主有足够的时间获得公共机关的保护。
  4. 自卫权不能超出必要的伤害。意思说公众不能使用超过当时情况所需的武力来进行自卫,否则即属违法。

除了第99条文的限制,自卫权利也只有在某些情况才能伸展到自卫杀人。

  • 根据第100条文,这些情况包括:
  1. 该项攻击可能合理地引起担心面对死亡的后果;
  2. 该项攻击可能合理地引起担心面对重伤的后果;
  3. 该项攻击是企图强奸;
  4. 该项攻击是企图满足不正常的性欲
  5. 该项攻击是企图绑架或强拐;
  6. 该项攻击是企图非法禁锢一个人,而在该情况下使他可能会合理地担心他不能够得到公共机关的解救。

 

PENAL CODE : Right of Private Defence
96. Nothing is an offence which is done in the exercise of the right of private defence.
97. Every person has a right, subject to the restrictions contained in section 99, to defend—

  • (a) his own body, and the body of any other person, against any offence affecting the human body;
  • (b) the property, whether movable or immovable, of himself or of any other person, against any act which is an
    offence falling under the definition of theft, robbery,mischief or criminal trespass, or which is an attempt to
    commit theft, robbery, mischief or criminal trespass.

98. When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind, or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.

ILLUSTRATIONS

  • (a) Z, under the influence of madness, attempts to kill A. Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane.
  • (b) A enters, by night, a house which he is legally entitled to enter. Z, in good faith, taking A, for a house breaker, attacks A. Here Z, by attacking A, under this misconception, commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under that misconception.

99.Acts against which there is no right of private defence

  1. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.
  2. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law.
  3. There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
  4. The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
  • Explanation 1—A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows, or has reason to believe, that the person doing the act is such public servant.
  • Explanation 2—A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction; or unless such person states the authority under which he acts, or, if he has authority in writing, unless he produces such authority, if demanded. When the right of private defence of the body extends to causing death

100. The right of private defence of the body extends, under the restrictions mentioned in the last preceding, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right is of any of the following descriptions:

  • (a) such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
  • (b) such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the
    consequence of such assault.
  • (c) an assault with the intention of committing rape;
  • (d) an assault with the intention of gratifying unnatural lust;
  • (e) an assault with the intention of kidnapping or abducting;
  • (f) an assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

参考文章:http://www.malaysia-chinese.net/cgi-bin/czreadall.pl?mesgdir=messages&board=luntan&User=&Pass=&file=115&records=47691&year=2011&month=01

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因自卫伤人,违法吗?