O*******d
发帖数: 20343 | 1 还是美国的法律比较成熟。可以做参考。
下边是对防卫的解释
要点
Is the Threat Imminent?
威胁是否是当即面对的。
Was the Fear of Harm Reasonable?
对威胁的恐惧是否是合理的。
Imperfect Self-defense
不完美的自卫。 被攻击者认为有立即的威胁而采取了自卫。
Proportional Response
自卫手段要和攻击手段相对应。 自卫手段只能足以对抗危机即可。
Duty to Retreat
被威胁者如果有机会逃离威胁，就必须逃离而不是使用暴力自卫。
Stand Your Ground
被威胁者也可以选择不逃离，而是自卫。 这点和上点矛盾。各州规定不同
Castle Doctrine
可以对在家里破门而入的威胁者使用致命手段
Is the Threat Imminent?
As a general rule, self-defense only justifies the use of force when it is
used in response to an immediate threat. The threat can be verbal, as long
as it puts the intended victim in an immediate fear of physical harm.
Offensive words without an accompanying threat of immediate physical harm,
however, do not justify the use of force in self-defense.
Moreover, the use of force in self-defense generally loses justification
once the threat has ended. For example, if an aggressor assaults a victim
but then ends the assault and indicates that there is no longer any threat
of violence, then the threat of danger has ended. Any use of force by the
victim against the assailant at that point would be considered retaliatory
and not self-defense.
Was the Fear of Harm Reasonable?
Sometimes self-defense is justified even if the perceived aggressor didn’t
actually mean the perceived victim any harm. What matters in these
situations is whether a “reasonable person” in the same situation would
have perceived an immediate threat of physical harm. The concept of the “
reasonable person” is a legal conceit that is subject to differing
interpretations in practice, but it is the legal system’s best tool to
determine whether a person’s perception of imminent danger justified the
use of protective force.
To illustrate, picture two strangers walking past each other in a city park.
Unbeknownst to one, there is a bee buzzing around his head. The other
person sees this and, trying to be friendly, reaches quickly towards the
other to try and swat the bee away. The person with the bee by his head sees
a stranger’s hand dart towards his face and violently hits the other
person’s hand away. While this would normally amount to an assault, a court
could easily find that the sudden movement of a stranger’s hand towards a
person’s face would cause a reasonable man to conclude that he was in
danger of immediate physical harm, which would render the use of force a
justifiable exercise of the right of self-defense. All this in spite of the
fact that the perceived assailant meant no harm; in fact, he was actually
trying to help!
Imperfect Self-defense
Sometimes a person may have a genuine fear of imminent physical harm that is
objectively unreasonable. If the person uses force to defend themselves
from the perceived threat, the situation is known as “imperfect self-
defense.” Imperfect self-defense does not excuse a person from the crime of
using violence, but it can lessen the charges and penalties involved. Not
every state recognizes imperfect self-defense, however.
For example, a person is waiting for a friend at a coffee shop. When the
friend arrives, he walks toward the other person with his hand held out for
a handshake. The person who had been waiting genuinely fears that his friend
means to attack him, even though this fear is totally unreasonable. In
order to avoid the perceived threat, the person punches his friend in the
face. While the person’s claim of self-defense will not get him out of any
criminal charges because of the unreasonable nature of his perception, it
could reduce the severity of the charges or the eventual punishment.
Some states also consider instances where the person claiming self-defense
provoked the attack as imperfect self-defense. For example, if a person
creates a conflict that becomes violent then unintentionally kills the other
party while defending himself, a claim of self-defense might reduce the
charges or punishment, but would not excuse the killing entirely.
Proportional Response
The use of self-defense must also match the level of the threat in question.
In other words, a person can only employ as much force as required to
remove the threat. If the threat involves deadly force, the person defending
themselves can use deadly force to counteract the threat. If, however, the
threat involves only minor force and the person claiming self-defense uses
force that could cause grievous bodily harm or death, the claim of self-
defense will fail.
Duty to Retreat
The original laws regarding self-defense required people claiming self-
defense to first make an attempt to avoid the violence before using force.
This is also known as a “duty to retreat.” While most states have removed
this rule for instances involving the use of nonlethal force, many states
still require that a person make an attempt to escape the situation before
applying lethal force.
Stand Your Ground
In contrast to the duty to retreat, many states have enacted so-called “
stand your ground” laws. These laws remove the duty to retreat and allow
for a claim of self-defense even if the claimant did nothing to flee from
the threat of violence. As mentioned above, this is the more common rule
when situations involve nonlethal force. States are split on the stand your
ground principle when lethal force is in play, however.
Castle Doctrine
Even in states that require a person to retreat from the threat of imminent
harm before defending themselves, a person can often use deadly force
against someone who unlawfully enters their home. This rule, also known as
“the castle doctrine,” allows people to defend their homes against
intruder through lethal force. Like most of these rules, the exact result
will vary according to the jurisdiction and the specific facts of the case,
so it’s always a good idea to consult an attorney to learn more.
http://criminal.findlaw.com/criminal-law-basics/self-defense-overview.html | l*****i
发帖数: 20533 | 2 比照国内的那个案子的情况，主要问题是2，3，4点很难说明清楚。需要证据。 | l****p
发帖数: 27354 | 3 这个不错，给大家科普。可见，中国的案例条件都具备了，美国这个则没有完全具备。 |
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