- 學位論文
住所內正當防衛之探究—以美國法堡壘原則為中心
Self-Defense from the angle of the Castle Doctrine
摘要
一個人的住所神聖性正是其生活隱私與不可剝奪的人身安全、自由與私有財產權的結合、以及其對居住安寧之依賴等，在在彰顯了住所的特殊性。在這樣的特殊領域內發生之侵入伴隨潛在侵害行為，對於住所內之人遠較一般情形所造成之急迫性與威脅性更劇，亦因此使得住所內之人為之防衛行為通常程度將大於一般情況，在現行通說標準下多將成立過當防衛，而有重新檢視之必要。 是以對於住所內之正當防衛行為之判斷標準欲重新審酌，本文於第二章先就我國法之正當防衛進行簡介，分別從理論發展與實務見解分析，並將住所內正當防衛類型之特殊性提出；於第三章就比較法美國法之正當防衛亦分別從理論發展與法院見解進行說明，並將美國法之「堡壘原則」與近代「不退讓法」詳細分析、介紹與反思；再於第四章就堡壘原則嘗試於我國刑法中借鏡，提出相關理論之應用與例外情形，並以論理說明本文欲將正當防衛對於「侵害是否存在」在住所內正當防衛類型中改採客觀事中判斷；最終於第五章就本文緣起之勇夫護妻案進行應用，並提出研究成果之回顧與未來展望。
並列摘要
The sanctity of one's home is the privacies of life and indefeasible right of personal security, personal liberty, and private property, and the dependency on the peace of one’s home. These highlight the particularity of Home. In this particular place, invasion is accompanied by potential violation. The proposed urgency and threat are far more severe to the person in one’s home than regular places. Therefore, one’s defensive actions are more aggressive than usual. Under current standards, they are often categorized as excessive force in self-defense. Considering the particularity of one’s home, the current criteria of self-defense need to be re-examined. In Chapter Two, self-defense in our Criminal Law was introduced and analyzed from the aspects of theory and practice. The particularity of self-defense in one’s home was then proposed. In Chapter Three, self-defense in Anglo-American law was also analyzed from the aspects of theory development and the practice in the court. The Castle Doctrine and the Stand Your Ground Law in American law were also analyzed, introduced, and reviewed in detail. In Chapter Four, the Castle Doctrine was referenced to our Criminal Law, and applications and exceptions were suggested. The study proposed that when judging “self-defense in one’s home” cases, whether danger exists should be considered by a reasonable prudent person in one’s shoes instead of in hindsight. Finally, the applications were applied to the original case discussed in the beginning of the study in Chapter Five, and the results and indications were concluded.