對防衛過當判斷標準之檢討

2014年10間發生屋主為保護孕妻與侵入屋內之竊賊鬥毆，致竊賊死亡之事件，惟判決做出後，社會大眾普遍認為屋主係出於保護孕妻之意而為防禦之攻擊，最終雖導致竊賊死亡，但為何不能主張正當防衛？又為何要負法律責任？由此可見本判決無法讓大眾信服。本文係以防衛過當之判斷標準為核心做討論，先就我國正當防衛進行概要論述，其次整理我國實務對於防衛過當之判斷標準，從整理之判決中可得出我國對於防衛過當之判斷標準有浮動不定甚或無特定標準之情形，之後再將我國實務與日本實務之判斷標準相互比較，並在過程中檢視我國防衛過當之標準，且從中嘗試擷取並歸納出適合我國防衛過當之判斷標準，以利於將來做防衛過當標準之判斷時使用。

關鍵字

正當防衛；防衛過當；防衛行為；必要性

並列摘要

In October 2014, an incident occurred in which a homeowner, ostensibly to protect his pregnant wife, engaged in a scuffle with a burglar who had intruded their home. The scuffle resulted in the death of the burglar. After the homeowner was declared guilty for the burglar’s death, the public believed that the homeowner’s act was defensive and that his intention was to protect his wife. The public questioned why the homeowner’s actions could not be claimed as self-defense and why he should bear legal liability. Thus, the verdict was not acceptable to the public. In this paper, judgment criteria of excessive self-defense were used as the core of the discussion. An overview of the criteria of excessive self-defense in Taiwan was performed, followed by a comprehensive analysis of the court rulings based on the judgements of excessive self-defense. The review of the relevant verdicts indicated that the judgment criteria for excessive self-defense in Taiwan have either been inconsistent or nonexistent. Subsequently, the use of self-defense judgment criteria in Taiwan and Japan were compared. During this process, previous judgements of excessive self-defense in Taiwan were examined to identify and summarize appropriate judgment criteria that may be consistently used to facilitate future judgments of excessive self-defense in Taiwanese courts.