摘要：

目前我国司法实践在处理受虐妇女杀夫案时直接进入量刑阶段，忽视了适用出罪事由实现无罪的可能性。在此类案件中，虽然因不存在“正在进行”的不法侵害而不能适用正当防卫，但针对危险引发者的防卫行为则可以运用其他紧急权资源。受虐妇女因无法忍受家庭暴力而杀害丈夫的行为，构成防御性紧急避险。然而紧急避险的正当化根据，不应采取功利主义的法益权衡说，而应采取社会团结义务说。即仅在理性人自愿负担的社会团结义务的限度以内才能成立违法阻却事由，因侵害生命的避险行为超出了社会团结义务的限度而无法得以正当化，但可能成立以无期待可能性为基础的责任阻却性紧急避险，这与我国《刑法》第21条的规定并不矛盾。

关键词: 责任阻却性紧急避险, 防御性紧急避险, 正当防卫, 期待可能性, 家庭暴力

Abstract:

In most current judicial cases，in which women victims of domestic violence killed their abusive husbands，the judges were costumed to considering about sentencing at the first stage，which results in a negligence of the possibility of innocence.In such cases，notwithstanding the impossibility of application of justifiable defense due to the absence of“in-progress”illegal invasion，other right ofnecessity resources，i.e.the necessity，can be taken into account in the case of defense against the risk-origin.Having been driven to kill the husband by a victim of domestic violence meets the legal requirements of defensive necessity.We shall not adopt the utilitarian theory justifying the homicide purely through calculating the legal interests.Instead，it should be justified based on the“social joint liability”，meaning that the illegality can only be excused when the disadvantage caused by the risk avoiding action to the other person lies within the limit of social joint responsibility which would be voluntarily borne by a rational person.The risk avoiding action disposing of lives cannot be excused from illegality because it lies beyond the aforesaid limit.It could trigger，however，the exclusion of criminal liabilities based on its absence of possibility of anticipation，which does not conflict with the provisions of Article 21 of the Criminal Law in China.Therefore，notwithstanding that the homicide committed by battered women remains illegal because it exceeds the necessary limit，the victims in the domestic violence could still be treated as not guilty for the reason that they could not be anticipated to exercise lawfully in those extreme situations.

Key words: Necessity Impeding Liabilities, Defensive Necessity, Justifiable Defense, Theory of the Anticipated Possibility, Domestic Violence