假想防卫法律论文

栏目: 工作范文 来源:简报范文网 时间:2021-02-20 12:14:46 阅读:

内容摘要:假想防卫法律论文假想防卫法律论文正当防卫所针对的不法法侵害必须是现实存在的,而而不是虚幻或想象的。所

 假想防卫法律论文

假想防卫法律论文

正当防卫所针对的不法法侵害必须是现实存在的,而而不是虚幻或想象的。所谓现现实的不法侵害,是指不法侵侵害是客观存在的,这包括侵侵害的客观性和不法的客观性性。侵害的客观性是指对行为为对象而言,该行为实际上确确实对国家、公共利益、本人人或他人的人身、财产或其他他权利造成实际的损害或者损损害的危险。一个行为如果虽虽然在外观上具有侵害的特征征,但实际上无害甚或有益,,则该行为不具备危害的现实实性,如医生截去患者的患肢肢,对醉酒的人加以管束等,,因此行为人误将客观上有益益的行为或者不具有侵害性的的行为当做侵害行为的,其““防卫”行为不具备正当防卫卫的前提条件——不法侵害的的存在,故不成立正当防卫,,理论上称为“假想防卫”。。

二、假想防卫的具体类类型

据假想防卫的前提条条件来分

1无侵害前提的的假想防卫:即客观上并无侵侵害行为的存在,假想防卫人人对事实的有无,存在认识上上的错误,因而采取“正当防防卫”的行为。例品行口碑不不好的江某到朋友林某家玩,,拿出防身短刀请林鉴赏。恰恰好林弟从外面进来,见状误误认为江要杀林,便抓起酒瓶瓶将江头部击成重伤。本例中中江某纯属无辜,林弟的行为为不是正当防卫,有社会危害害性。但其主观方面存在正当当防卫的假想,就是没有侵害害前提的假想防卫。

2无无不法侵害前提的假想防卫::即外表上似乎正在进行不法法侵害,但实际上是行使正当当防卫或其他排除违法性的行行为,而假想防卫人误认为是是正在进行的不法侵害,因而而采取“正当防卫”的行为。。

3无正在进行的不法侵侵害前提的假想防卫:即客观观上虽有不法分割的现象,但但尚未构成直接威胁,而假防防卫人误认为不法分割正在进进行,因而采取“正当防卫””的行为。

据此此,可分为:1因对行为性质质的认识错误而实施不法侵害害行为的假想防卫,包括把对对方的正当活动误认为是不法法侵害行为而对其实行假想防防卫、把法律所提倡的合法行行为误认为是不法侵害行为而而对对方实行假想防卫、把执执行职务的行为误认为是不法法侵害而对对方实行假想防卫卫三种情况。

 2把无实害的的预备行为误认为是有害的不不法行为,对对方实行正当防防卫。3不法侵害行为不存在在,由于行为人受骗误认为不不法侵害存在,对对方实施假假想防卫。4对象错误的假想想防卫:即客观上虽然受到了了不法侵害,但防卫人对不法法侵害人发生了认识上的错误误,弄错了对象,而对无辜的的第

刘明祥教授认为所所谓“实际上并不存在不法行行为”排除了在实行正当防卫卫过程中,由被防卫者对国家家﹑社会及公民个人合法权益益所造成的客观侵害行为,而而一旦这种侵害行为存在,则则只能认为是在实行正当防卫卫过程中出现的事实错误。从从而阻却了在正当防卫过程中中假想防卫的成立。笔者认为为刘的理解有些过窄,在正当当防卫过程中,完全有可能因因为行为人误认为不法侵害行行为的存在,为了排除这种不不法侵害行为,保护合理的利利益而实施“防卫”行为。当当然在现实生活中,对象错误误的假想防卫极其少见。

据行为人对正当防卫的时间条条件发生错误认识而实行防卫卫来分

除了狭义的典型假假想防卫外,还有不法侵害尚尚未到来或已经过去,但行为为人误认为正在进行,因而实实行“防卫”的“防卫时间错错误”。据此分为事前防卫的的假想防卫及事后防卫的假想想防卫。事前防卫的假想防卫卫即在不法侵害尚处于预备阶阶段或犯意表示阶段,对于合合法权益的威胁,并未达到现现实状态,不法侵害人是否真真的实施某种侵害还无法判断断,而假想防卫人误以为不法法侵害行为已经开始发生而实实施的防卫行为。事后防卫的的假想防卫即不法侵害确已实实施完毕、中止或被迫停止,,但假想防卫人出于认识错误误,误认为其尚未结束,不法法侵害仍在进行之中而采取的的防卫行为。实践中一般有不不法侵害行为确已自动中止、、不法侵害人已被制服、侵害害行为已经实施完毕,危害结结果已经发生三种情况。

双方互为的假想防卫

即客客观上双方都不存在正当防卫卫前提条件,但主观上都误认认为具备,因而发生冲突,有有的甚至酿成严重流血事件。。互为假想防卫具有互为条件件的特征,如果将其视为一方方的责任,就不能得出准确的的结论。此外,由于矛盾双方方产生假想防卫的情节不同,,发展不同,后果也不同,又又存在两种例外情况:1同时时着手的互为假想防卫:即双双方都误认为有自己面临不法法侵害的威胁,如不及时自卫卫,一待对方动手,便会措手手不及,因而同时着手实施各各自所认为的“正当防卫”。。2异时着手的互为假想防卫卫:即双方都误认为自己面临临不法侵害的威胁,但一方先先动手,他方后动手,先动手手一

education on Party members'advancement activities and enhance awareness of the Communist Youth League education achievements, and vigorously promote the construction of civilization advanced units, units and staff home building activities, balanced, focused, pragmatic, innovation, high standard, high quality, high level, high efficiency to complete various tasks throughout the year.First, pay close attention to research information, efforts to improve decision-making servicesIn accordance with the "information reflect the information, promote the work of information leading work" requirements, adhere to grasp the team construction, mechanism construction and quantitative assessment, give full play to the assistant role of leadership, actively promote the innovation of research information development, and vigorously promote the research work of information to mention upgrading, efforts to improve the ability and level of decision-making.(a) adhere to the decision in the first place. To make the decision service as the focus of the work, participate in the point, and in the key place, in order to promote the democratization of decision-making, scientific advice. Based on the city's youth career "11th Five-Year" good bureau and the Communist Youth League work across the development, focus on the implementation of Scientific Outlook on Development theory and practice subject adolescents and youth work process of building a socialist harmonious society, pay close attention to the global, strategic, forward-looking major problems, grasp the overall situation, pay attention to plan and implement the specific tasks assigned by the leadership from the overall situation, think ahead on major issues concerning the overall situation, in-depth Study, grasp the dynamic, put forward suggestions, reflect in time.(two) adhere to the investigation. As an important way to firmly grasp the important link of scientific and democratic decision-making, focus on key leadership concern, concern and hot points of youth practice work, adhere to the practice to investigate and research, fully and accurately grasp the actual situation, for the leadership decision-making comes from practice, practical to provide first-hand information. To enhance the initiative, according to municipal Party committee leadership activities, week activities, in the "research" make great efforts to provide more targeted for leadership, predictability and effectiveness of comments and suggestions.(three) adhere to the information planning as an important means of expanding. The sources of information, through the network, the media and other channels, increase integration efforts the work of the Communist Youth League and youth information dynamic information resources, increase the information planning efforts to refine the Communist Youth League, and give full play to the role of information reference, to improve the quality of information as a fundamental, outstanding information work sensitivity and timeliness, timely, accurately, comprehensively reflect the municipal Party committee, municipal government, the Central Committee of the implementation of a major deployment, leadership attention, hot and difficult issues of concern to the masses and some important emergencies, timely provide all kinds of deep and valuable component of the following information. Continue to deepen the information research and information feedback system, information report system, information reporting system, information delivery system and information notification system, and constantly improve the information work of the assessment, incentive mechanism, improve the long-term mechanism to improve the information work of sustainable development.Two, pay close attention to contact and communication, efforts to improve the ability of comprehensive coordinationGive full play to a contact, pivotal role, coordination of the parties in accordance with the standard, efficient, high quality principles, firmly establish the principle of service, and effectively improve the level of policy theory, grasp the method of coordinating work, conscientiously do service leadership, service and Service Corps cadres.(a) do to actively carry out coordination. Upstream municipal Party committee, municipal government work report, and the central mission to understand, grasp the key ideas and working organs, targeted focus on reporting the work of mission, to focus on the city's superior league, major activities, attention, support and help.(two) do parallel coordination. To strengthen the contact and communication with the municipal departments, actively seek for the work of care, support, optimize the external environment. To strengthen the group work of the Communist Youth League and other provinces and cities, to grasp the work around the dynamic, active learning around the work experience, the effective integration of resources within the group, and the Communist Youth League career development.(three) earnestly grassroots coordination. Further increase communication efforts, strengthen the organizations at various levels to guide the work of the office and communication, to ensure the situation, reported lower levels of strength, and strive to the grassroots, inspired by the basic spirit of innovation, the formation of good ability of the league office work.Three, pay close attention to the quality of official documents, efforts to improve the ability to deal with textAdhere to high standards, strict requirements, careful attention to the drafting of the draft work, strict document drafting, audit clearance, proof reading and quality control, and strive to improve the ability to deal with the text, and the overall work of the service center.(a) earnestly. To further establish the draft document presentation system research, adhere to the practice, especially the drafting of important days and months multiplying, concentrating on the presentation of the research, understand the situation the situation, fully understand the intention of the leadership, to ensure the output, quality, and constantly improve the quality of manuscript. A manuscript quality appraisal system, the implementation of quantitative assessment, each quarter the comparison of office draft manuscript quality. Establish a reward system to reward the outstanding manuscript selection out, the wrong investigated persons responsible for the major errors.(two) strict master document quality. Strengthening document quality awareness, efforts in the drafting of documents, audit checks, printed all aspects of efforts, strict policy documents audit, content, format and procedures, adhere to the upper and lower check, and check before and after the check, ensure the document style format in the understanding of leadership intentions in place, ideas in the language in place, and strive to improve the quality of various documents.(three) a comprehensive specification document operation. To further standardize the document transfer procedures, emphasizing the precision in document processing, in strict accordance with the operating procedures document sign, registration, approval, distribution, handling, repaying, filing, ensure the document processing standard, accurate, and efficient. Especially to strict dispatch, strict audit document content. Strictly implement the document procedures step by step Shenqian, strict and unified file format, to ensure the normative document. Further the implementation of electronic document processing mode, the full implementation of OA office system, efforts to improve the work efficiency.Four, pay close attention to the work of supervision, efforts to improve the executive abilityThe city's major issues and focus on the overall work of the Communist Youth League to carry out supervision and inspection, insist on the idea, the handling of the key, efforts to promote the implementation of decisions, to ensure that government decrees.(a) on the center of focus on supervision. In accordance with the "grasp the overall situation, focused, practical, quantitative refinement" principle, conscientiously fulfill the supervision function, focusing on the important deployment, major decisions of the party will, secretary's office, department heads meeting agreed matters assigned by the leadership group, the book down and do the important matters and the regiment the key work to focus on supervision, to ensure that the inspection item piece is an echo, everything in the bag, to promote the work carried out smoothly.(two) grasp the key special supervision. According to different periods of work needs, focus on leadership, social concern, hot and difficult problem of youth reflects the implementation of regular and dynamic supervision of special work assigned by the leadership of the special work of tracking supervision, regularly held the Department responsible for the regular inspection work carried out inspection stage. Check or the implementation of the work, to the work of the special supervision and implementation.(three) innovative ways to promote the supervision. To further improve the effectiveness of supervision and inspection work, really play a role in promoting the implementation work. To further improve and perfect the supervision report system, inspection notification system, regularly carry out random checks of the supervision matters, to highlight the effectiveness of the inspection work, to effectively promote the work carried out.Five, pay close attention to daily management, efforts to improve logistical support capacityAccording to "do great things, do small things, start from the details; General requirements from the overall situation", pay close attention to daily management, enhance the foresight and initiative work, do the work of early preparation, program cost fine plan, artful arrangement, high quality services.(a) further strengthen the authority of hardware construction. Combined with the "three hit" work, to further promote the party organ culture construction, and actively carry out party building advanced units, units of civilization, to create the homes of the workers, further standardize internal office conditions, perfect decoration authorities canteen, strengthening the Office building management, further improve the authority office environment.(two) to further strengthen the organization system construction. The implementation of the municipal Party committee of various rules and regulations, in accordance with the norms of management, efficien

education on Party members'advancement activities and enhance awareness of the Communist Youth League education achievements, and vigorously promote the construction of civilization advanced units, units and staff home building activities, balanced, focused, pragmatic, innovation, high standard, high quality, high level, high efficiency to complete various tasks throughout the year.First, pay close attention to research information, efforts to improve decision-making servicesIn accordance with the "information reflect the information, promote the work of information leading work" requirements, adhere to grasp the team construction, mechanism construction and quantitative assessment, give full play to the assistant role of leadership, actively promote the innovation of research information development, and vigorously promote the research work of information to mention upgrading, efforts to improve the ability and level of decision-making.(a) adhere to the decision in the first place. To make the decision service as the focus of the work, participate in the point, and in the key place, in order to promote the democratization of decision-making, scientific advice. Based on the city's youth career "11th Five-Year" good bureau and the Communist Youth League work across the development, focus on the implementation of Scientific Outlook on Development theory and practice subject adolescents and youth work process of building a socialist harmonious society, pay close attention to the global, strategic, forward-looking major problems, grasp the overall situation, pay attention to plan and implement the specific tasks assigned by the leadership from the overall situation, think ahead on major issues concerning the overall situation, in-depth Study, grasp the dynamic, put forward suggestions, reflect in time.(two) adhere to the investigation. As an important way to firmly grasp the important link of scientific and democratic decision-making, focus on key leadership concern, concern and hot points of youth practice work, adhere to the practice to investigate and research, fully and accurately grasp the actual situation, for the leadership decision-making comes from practice, practical to provide first-hand information. To enhance the initiative, according to municipal Party committee leadership activities, week activities, in the "research" make great efforts to provide more targeted for leadership, predictability and effectiveness of comments and suggestions.(three) adhere to the information planning as an important means of expanding. The sources of information, through the network, the media and other channels, increase integration efforts the work of the Communist Youth League and youth information dynamic information resources, increase the information planning efforts to refine the Communist Youth League, and give full play to the role of information reference, to improve the quality of information as a fundamental, outstanding information work sensitivity and timeliness, timely, accurately, comprehensively reflect the municipal Party committee, municipal government, the Central Committee of the implementation of a major deployment, leadership attention, hot and difficult issues of concern to the masses and some important emergencies, timely provide all kinds of deep and valuable component of the following information. Continue to deepen the information research and information feedback system, information report system, information reporting system, information delivery system and information notification system, and constantly improve the information work of the assessment, incentive mechanism, improve the long-term mechanism to improve the information work of sustainable development.Two, pay close attention to contact and communication, efforts to improve the ability of comprehensive coordinationGive full play to a contact, pivotal role, coordination of the parties in accordance with the standard, efficient, high quality principles, firmly establish the principle of service, and effectively improve the level of policy theory, grasp the method of coordinating work, conscientiously do service leadership, service and Service Corps cadres.(a) do to actively carry out coordination. Upstream municipal Party committee, municipal government work report, and the central mission to understand, grasp the key ideas and working organs, targeted focus on reporting the work of mission, to focus on the city's superior league, major activities, attention, support and help.(two) do parallel coordination. To strengthen the contact and communication with the municipal departments, actively seek for the work of care, support, optimize the external environment. To strengthen the group work of the Communist Youth League and other provinces and cities, to grasp the work around the dynamic, active learning around the work experience, the effective integration of resources within the group, and the Communist Youth League career development.(three) earnestly grassroots coordination. Further increase communication efforts, strengthen the organizations at various levels to guide the work of the office and communication, to ensure the situation, reported lower levels of strength, and strive to the grassroots, inspired by the basic spirit of innovation, the formation of good ability of the league office work.Three, pay close attention to the quality of official documents, efforts to improve the ability to deal with textAdhere to high standards, strict requirements, careful attention to the drafting of the draft work, strict document drafting, audit clearance, proof reading and quality control, and strive to improve the ability to deal with the text, and the overall work of the service center.(a) earnestly. To further establish the draft document presentation system research, adhere to the practice, especially the drafting of important days and months multiplying, concentrating on the presentation of the research, understand the situation the situation, fully understand the intention of the leadership, to ensure the output, quality, and constantly improve the quality of manuscript. A manuscript quality appraisal system, the implementation of quantitative assessment, each quarter the comparison of office draft manuscript quality. Establish a reward system to reward the outstanding manuscript selection out, the wrong investigated persons responsible for the major errors.(two) strict master document quality. Strengthening document quality awareness, efforts in the drafting of documents, audit checks, printed all aspects of efforts, strict policy documents audit, content, format and procedures, adhere to the upper and lower check, and check before and after the check, ensure the document style format in the understanding of leadership intentions in place, ideas in the language in place, and strive to improve the quality of various documents.(three) a comprehensive specification document operation. To further standardize the document transfer procedures, emphasizing the precision in document processing, in strict accordance with the operating procedures document sign, registration, approval, distribution, handling, repaying, filing, ensure the document processing standard, accurate, and efficient. Especially to strict dispatch, strict audit document content. Strictly implement the document procedures step by step Shenqian, strict and unified file format, to ensure the normative document. Further the implementation of electronic document processing mode, the full implementation of OA office system, efforts to improve the work efficiency.Four, pay close attention to the work of supervision, efforts to improve the executive abilityThe city's major issues and focus on the overall work of the Communist Youth League to carry out supervision and inspection, insist on the idea, the handling of the key, efforts to promote the implementation of decisions, to ensure that government decrees.(a) on the center of focus on supervision. In accordance with the "grasp the overall situation, focused, practical, quantitative refinement" principle, conscientiously fulfill the supervision function, focusing on the important deployment, major decisions of the party will, secretary's office, department heads meeting agreed matters assigned by the leadership group, the book down and do the important matters and the regiment the key work to focus on supervision, to ensure that the inspection item piece is an echo, everything in the bag, to promote the work carried out smoothly.(two) grasp the key special supervision. According to different periods of work needs, focus on leadership, social concern, hot and difficult problem of youth reflects the implementation of regular and dynamic supervision of special work assigned by the leadership of the special work of tracking supervision, regularly held the Department responsible for the regular inspection work carried out inspection stage. Check or the implementation of the work, to the work of the special supervision and implementation.(three) innovative ways to promote the supervision. To further improve the effectiveness of supervision and inspection work, really play a role in promoting the implementation work. To further improve and perfect the supervision report system, inspection notification system, regularly carry out random checks of the supervision matters, to highlight the effectiveness of the inspection work, to effectively promote the work carried out.Five, pay close attention to daily management, efforts to improve logistical support capacityAccording to "do great things, do small things, start from the details; General requirements from the overall situation", pay close attention to daily management, enhance the foresight and initiative work, do the work of early preparation, program cost fine plan, artful arrangement, high quality services.(a) further strengthen the authority of hardware construction. Combined with the "three hit" work, to further promote the party organ culture construction, and actively carry out party building advanced units, units of civilization, to create the homes of the workers, further standardize internal office conditions, perfect decoration authorities canteen, strengthening the Office building management, further improve the authority office environment.(two) to further strengthen the organization system construction. The implementation of the municipal Party committee of various rules and regulations, in accordance with the norms of management, efficien2016全新精品资料-全新公文范文-全程指导写作 –独家原创 1 / 4

education on Party members'advancement activities and enhance awareness of the Communist Youth League education achievements, and vigorously promote the construction of civilization advanced units, units and staff home building activities, balanced, focused, pragmatic, innovation, high standard, high quality, high level, high efficiency to complete various tasks throughout the year.First, pay close attention to research information, efforts to improve decision-making servicesIn accordance with the "information reflect the information, promote the work of information leading work" requirements, adhere to grasp the team construction, mechanism construction and quantitative assessment, give full play to the assistant role of leadership, actively promote the innovation of research information development, and vigorously promote the research work of information to mention upgrading, efforts to improve the ability and level of decision-making.(a) adhere to the decision in the first place. To make the decision service as the focus of the work, participate in the point, and in the key place, in order to promote the democratization of decision-making, scientific advice. Based on the city's youth career "11th Five-Year" good bureau and the Communist Youth League work across the development, focus on the implementation of Scientific Outlook on Development theory and practice subject adolescents and youth work process of building a socialist harmonious society, pay close attention to the global, strategic, forward-looking major problems, grasp the overall situation, pay attention to plan and implement the specific tasks assigned by the leadership from the overall situation, think ahead on major issues concerning the overall situation, in-depth Study, grasp the dynamic, put forward suggestions, reflect in time.(two) adhere to the investigation. As an important way to firmly grasp the important link of scientific and democratic decision-making, focus on key leadership concern, concern and hot points of youth practice work, adhere to the practice to investigate and research, fully and accurately grasp the actual situation, for the leadership decision-making comes from practice, practical to provide first-hand information. To enhance the initiative, according to municipal Party committee leadership activities, week activities, in the "research" make great efforts to provide more targeted for leadership, predictability and effectiveness of comments and suggestions.(three) adhere to the information planning as an important means of expanding. The sources of information, through the network, the media and other channels, increase integration efforts the work of the Communist Youth League and youth information dynamic information resources, increase the information planning efforts to refine the Communist Youth League, and give full play to the role of information reference, to improve the quality of information as a fundamental, outstanding information work sensitivity and timeliness, timely, accurately, comprehensively reflect the municipal Party committee, municipal government, the Central Committee of the implementation of a major deployment, leadership attention, hot and difficult issues of concern to the masses and some important emergencies, timely provide all kinds of deep and valuable component of the following information. Continue to deepen the information research and information feedback system, information report system, information reporting system, information delivery system and information notification system, and constantly improve the information work of the assessment, incentive mechanism, improve the long-term mechanism to improve the information work of sustainable development.Two, pay close attention to contact and communication, efforts to improve the ability of comprehensive coordinationGive full play to a contact, pivotal role, coordination of the parties in accordance with the standard, efficient, high quality principles, firmly establish the principle of service, and effectively improve the level of policy theory, grasp the method of coordinating work, conscientiously do service leadership, service and Service Corps cadres.(a) do to actively carry out coordination. Upstream municipal Party committee, municipal government work report, and the central mission to understand, grasp the key ideas and working organs, targeted focus on reporting the work of mission, to focus on the city's superior league, major activities, attention, support and help.(two) do parallel coordination. To strengthen the contact and communication with the municipal departments, actively seek for the work of care, support, optimize the external environment. To strengthen the group work of the Communist Youth League and other provinces and cities, to grasp the work around the dynamic, active learning around the work experience, the effective integration of resources within the group, and the Communist Youth League career development.(three) earnestly grassroots coordination. Further increase communication efforts, strengthen the organizations at various levels to guide the work of the office and communication, to ensure the situation, reported lower levels of strength, and strive to the grassroots, inspired by the basic spirit of innovation, the formation of good ability of the league office work.Three, pay close attention to the quality of official documents, efforts to improve the ability to deal with textAdhere to high standards, strict requirements, careful attention to the drafting of the draft work, strict document drafting, audit clearance, proof reading and quality control, and strive to improve the ability to deal with the text, and the overall work of the service center.(a) earnestly. To further establish the draft document presentation system research, adhere to the practice, especially the drafting of important days and months multiplying, concentrating on the presentation of the research, understand the situation the situation, fully understand the intention of the leadership, to ensure the output, quality, and constantly improve the quality of manuscript. A manuscript quality appraisal system, the implementation of quantitative assessment, each quarter the comparison of office draft manuscript quality. Establish a reward system to reward the outstanding manuscript selection out, the wrong investigated persons responsible for the major errors.(two) strict master document quality. Strengthening document quality awareness, efforts in the drafting of documents, audit checks, printed all aspects of efforts, strict policy documents audit, content, format and procedures, adhere to the upper and lower check, and check before and after the check, ensure the document style format in the understanding of leadership

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