1D287

Ⅰ 重要名詞解釋 民法 ··················································· 003 第一編

總則 ······················································· 003

第一章

法例 ······························································· 003

習慣法 ·········································································· 003 法理 ·············································································· 003 法律漏洞與填補 ··························································· 004

第二章

人 ··································································· 006

第一節

自然人 ······················································· 006

權利能力 ··································································· 006 胎兒之權利能力 ······················································· 006 死亡宣告 ··································································· 007 同時存在原則 ··························································· 007 行為能力 ··································································· 008 –1–

行為能力制度 ··························································· 008 意思能力 ··································································· 008 責任能力 ··································································· 008 人格權 ······································································ 011 慰撫金 ······································································ 011 人格權救濟機制 ······················································· 011 姓名權 ······································································ 011 決定住所的標準 ······················································· 012

第二節 第一款

法人 ······························································· 013 通則 ······························································· 013

法人 ······································································ 013 董事 ······································································ 014 董事代表權之限制 ················································ 014 法人之侵權責任 ··················································· 014 第 28 條規定的類推適用 ······································ 015 解散 ······································································ 017 法人之清算 ··························································· 017 第二款

社團 ······························································· 019

社員權 ··································································· 020 第三款

第三章

財團 ······························································· 022

物 ··································································· 024

定著物 ·········································································· 024 物的成分（部分） ······················································· 024 處分 ·············································································· 025

–2–

第四章

法律行為 ······················································· 026

第一節

通則 ······························································· 026

法律行為 ··································································· 026 準法律行為 ······························································· 026 負擔行為與處分行為 ················································ 026 事實行為 ··································································· 026 脫法行為 ··································································· 027 強制規定與禁止規定 ················································ 027

第二節

行為能力 ······················································· 028

無意識 ······································································ 028 精神錯亂 ··································································· 029 允許 ·········································································· 029 純獲法律上之利益 ···················································· 029 無損益法律行為（中性行為） ································· 030 單獨行為 ··································································· 030 契約行為效力未定 ···················································· 030 承認 ·········································································· 031 催告 ·········································································· 031

第三節

意思表示 ······················································· 032

意思表示 ··································································· 032 心中保留（真意保留、單獨虛偽意思表示） ·········· 032 通謀虛偽意思表示 ···················································· 033 隱藏行為 ··································································· 034 信託行為 ··································································· 034 借名登記 ··································································· 034 錯誤 ·········································································· 034 –3–

詐欺 ·········································································· 036 脅迫 ·········································································· 036 了解 ·········································································· 037 撤回 ·········································································· 037

第四節

條件及期限 ·················································· 038

條件 ·········································································· 038 停止條件 ··································································· 038 解除條件 ··································································· 039 期待權 ······································································ 039 期限 ·········································································· 040

第五節

代理 ······························································· 040

代理 ·········································································· 040 代理行為之瑕疵 ······················································· 042 代理權係以法律行為授與者 ···································· 042 自己代理之禁止 ······················································· 043 雙方代理（重複代理） ············································ 044 無代理權人之責任 ··················································· 045

第六節

無效及撤銷 ·················································· 046

無權處分 ··································································· 047

第五章

期日及期間 ···················································· 048

第六章

消滅時效 ························································ 049

消滅時效 ······································································ 049 除斥期間 ······································································ 049 消滅時效與誠信原則 ··················································· 050 消滅時效中斷 ······························································· 051 –4–

消滅時效不完成 ··························································· 054 不可避之事變 ······························································· 054 自然債務 ······································································ 055

第七章

權利之行使 ···················································· 056

權利失效法理 ······························································· 056 自助行為 ······································································ 057

中華民國刑法 ··································· 058 第一編

總則 ······························································· 058

第一章

法例 ······························································· 058

罪刑法定原則 ······························································· 058 從舊從輕原則 ······························································· 059 法律變更 ······································································ 059 單純事實之變更 ··························································· 059 空白刑法 ······································································ 059 限時法 ·········································································· 060 保安處分 ······································································ 060 屬地原則 ······································································ 061 領域 ·············································································· 061 隔地犯 ·········································································· 061 保護原則 ······································································ 062 世界原則 ······································································ 062 屬人原則 ······································································ 063 保護原則 ······································································ 063 公務員 ·········································································· 064 –5–

文書 ·············································································· 066 性交 ·············································································· 066 毀敗之意義 ··································································· 067 重大不治或難治之意義 ················································ 067

第二章

刑事責任 ························································ 068

過失未遂 ······································································ 068 認識主義 ······································································ 070 意欲主義 ······································································ 070 容認主義（希望主義） ················································ 070 直接故意 ······································································ 070 間接故意 ······································································ 070 構成要件錯誤 ······························································· 071 客體錯誤 ······································································ 071 打擊錯誤 ······································································ 072 因果關係錯誤 ······························································· 072 包攝錯誤 ······································································ 072 無認識過失 ··································································· 073 有認識過失 ··································································· 073 不作為犯 ······································································ 073 純正不作為犯 ······························································· 074 不純正不作為犯 ··························································· 074 保證人地位 ··································································· 074 違法性錯誤 ··································································· 075 直接禁止錯誤 ······························································· 075 阻卻違法事由錯誤 ······················································· 075 阻卻違法事由前提事實錯誤 ········································ 076 –6–

幻覺犯 ·········································································· 077 不法意識 ······································································ 077 加重結果犯 ··································································· 078 責任能力 ······································································ 079 心神喪失 ······································································ 079 精神耗弱 ······································································ 080 精神、身體障礙、或其他心智缺陷 ····························· 080 原因自由行為 ······························································· 080 瘖啞 ·············································································· 082 院字第 1700 號（需瘖啞兼備） ··································· 082 司法院廳刑一字第 727 號（自幼係指七歲） ·········· 082 阻卻違法事由 ······························································· 083 過失與正當防衛 ··························································· 084 誤想正當防衛 ······························································· 084 偶然防衛 ······································································ 084 對物防衛 ······································································ 085 挑唆式（後）的正當防衛 ············································ 085 過失共同正犯 ······························································· 087 互毆與正當防衛 ··························································· 088 過當避難 ······································································ 089 補充原則 ······································································ 089 自招避難 ······································································ 089 超法規緊急避難 ··························································· 090

第三章

未遂犯 ··························································· 090

陰謀 ·············································································· 090 預備 ·············································································· 091 –7–

形式預備犯、實質預備犯 ············································ 091 著手 ·············································································· 091 不能未遂犯 ··································································· 092 普通未遂犯 ··································································· 092 中止未遂犯 ··································································· 092 著手未遂，實行未遂 ··················································· 093 準中止犯 ······································································ 093 誠摯努力（準中止犯之檢討要件） ····························· 094

第四章

正犯與共犯 ···················································· 095

正犯概念 ······································································ 095 間接正犯 ······································································ 095 共同正犯 ······································································ 096 共謀共同正犯 ······························································· 097 同時犯 ·········································································· 097 教唆犯 ·········································································· 098 間接教唆犯 ··································································· 098 失敗教唆 ······································································ 099 無效教唆 ······································································ 099 狹義之教唆未遂 ··························································· 099 未遂教唆 ······································································ 099 幫助犯 ·········································································· 100 片面幫助 ······································································ 100 虛偽幫助 ······································································ 101 身分犯 ·········································································· 101 雙重身分犯 ··································································· 102

–8–

第五章

刑 ··································································· 103

主刑 ·············································································· 103 從刑 ·············································································· 103 褫奪公權 ······································································ 104

第五章之一

沒收 ······················································· 105

沒收 ·············································································· 106 違禁物 ·········································································· 106 供犯罪所用之物或供犯罪預備之物 ····························· 106 因犯罪所生之物 ··························································· 108 第三人沒收 ··································································· 109 追徵 ·············································································· 109 因犯罪所生之物 ··························································· 110 判決沒收、裁定沒收 ···················································· 111

第五章之二

易刑 ························································ 111

易刑處分 ······································································ 112 易科罰金 ······································································ 113 執行顯有困難 ······························································· 113 易刑處分 ······································································ 114 易刑處分 ······································································ 115

第六章

累犯 ································································ 115

累犯 ·············································································· 116 擬制累犯 ······································································ 116 執行完畢 ······································································ 117 赦免 ·············································································· 117 有期徒刑以上之罪 ······················································· 117 –9–

更定其刑 ······································································ 118

第七章

數罪併罰 ·························································118

數罪併罰 ······································································ 118 合併執行 ······································································ 119 吸收主義 ······································································ 120 併科主義 ······································································ 120 限制加重主義 ······························································· 120 想像競合犯 ··································································· 121

第八章

刑之酌科及加減 ············································ 122

酌科與酌減之區別 ······················································· 122 酌加 ·············································································· 122 酌科與酌減之區別 ······················································· 123 酌免 ·············································································· 124 自首 ·············································································· 124 未發覺之罪 ··································································· 125 投案、自白 ··································································· 125 科刑權限制 ··································································· 125 必減 ·············································································· 126 同時有免除其刑之規定 ················································ 127 同加、同減 ··································································· 127 併加、併減 ··································································· 128 遞加、遞減 ··································································· 128

第九章

緩刑 ······························································· 129

緩刑與假釋之區別 ······················································· 130 暫不執行為適當 ··························································· 130 –10–

緩刑期間 ······································································ 131 刑之宣告失其效力 ······················································· 132

第十章

假釋 ······························································· 133

緩刑與假釋之區別 ······················································· 133 合併執行 ······································································ 134

第十一章

時效 ··························································· 135

追訴權時效 ··································································· 135 時效停止制 ··································································· 136 行刑權時效與追訴權時效之區別 ································· 136 行刑權時效與追訴權時效之區別 ································· 137 時效停止制 ··································································· 137

第十二章

保安處分 ···················································· 138

刑罰與保安處分之區別 ················································ 138 常業犯 ·········································································· 139 保安處分之不執行 ······················································· 142

–11–

Ⅱ 基本概念說明表 民法總則 ··········································· 145 01「債權」與「物權」之區別 ······································· 145 02 私法人之侵權責任 ····················································· 145 03「社團法人」與「財團法人」之區別 ························ 146 04「法律行為」與其「種類」 ······································· 147 05「負擔行為」與「處分行為」之區別 ························ 148 06 意思表示偶然不一致與意思表示不自由之區別 ········ 149 07「通謀虛偽意思表示」與「詐害債權」之區別 ········· 150 08「詐欺」與「脅迫」之區別 ······································· 151 09「狹義無權代理」與「表見代理」之區別 ················ 151 10「消滅時效」與「除斥期間」之區別 ························ 152 11「時效中斷」與「時效不完成」之區別 ···················· 153 12 權利的自力救濟 ························································· 154 13 無權處分與無權代理之區分 ······································ 154 14 法律行為無效、得撤銷與效力未定 ··························· 155

刑法總則 ··········································· 157 01「狀態犯」與「繼續犯」之區別 .............................. 157 02「抽象危險犯」與「具體危險犯」之區別 .............. 158 03「未必故意」與「有認識過失」之區別 .................. 159 –12–

04 確定故意與不確定故意 ............................................ 160 05 第 17 條之「能預見」與第 13 條第 2 項之「預見」 之區別 ....................................................................... 161

06「原因自由行為」與「麻醉狀態下的違法行為」之 區別 ........................................................................... 162

07「正當防衛」與「緊急避難」之區別 ...................... 163 08「攻擊性緊急避難」與「防衛性緊急避難」之區別 ................................................................................ 168

09「阻卻構成要件該當性之同意」及「阻卻違法性之 承諾」之區別 ........................................................... 169

10「客體錯誤」與「打擊失誤」之區別 ...................... 171 11「普通未遂」與「不能未遂」之區別 ...................... 173 12 參與犯之區別 ............................................................ 176 13「教唆」與「煽惑」之區別 ...................................... 177 14「連續犯」、「接續犯」與「繼續犯」之區別 ........... 178 15「酌科」與「酌減」之區別 ...................................... 180 16「意圖」與「動機」之區別 ...................................... 180 17「刑罰」與「保安處分」之區別 .............................. 181 18「自首」與「自白」之區別 ...................................... 182 19「緩刑」與「假釋」之區別 ...................................... 183 20「行刑權時效」與「追訴權時效」之區別 ............... 187 21「公文書」與「私文書」之區別 .............................. 190 22「文書」與「準文書」之區別 .................................. 191 23 保安處分之種類 ........................................................ 193

–13–

民法

第一編

總則

第一章

法例

民法 第一編

總則

第一章

法例

第 1 條（法源） 民事，法律所未規定者，依習慣；無習慣者，依法理。 ■名詞解釋 習慣法 意義：指有法之效力與價值者之慣行而言。 習慣法之成立，須以多年慣行的事實及普通一般人之 確信心為其基礎（17 上 613 判例）。 適用：習慣僅有補充法律之效力，故凡與成文法相 牴觸時，不論習慣成立先後，均不能認有法之效力。 〔參見，王澤鑑，民法總則，2014 年 2 月版，頁 72～74。〕

區辨：事實上的習慣（欠缺法之確信） 第一條指習慣法。 第一條以外所稱習慣，指事實上習慣。第二條可 兼指二者。 法律明定習慣（事實上慣行）應優先適用者，此 乃依法而適用，惟此習慣仍不具法源性質。 〔參見，王澤鑑，民法總則，2014 年 2 月版，頁 74～76。〕

法理 意義：指法律之一般原理原則而言，即多數人所承 認之共同生活的原理，例如：正義、衡平及利益衡 量等自然法的根本原理。亦指，應自隱含在立法、 法秩序或一般價值體系演繹而出的一般法律原則。

3

4

Ⅰ重要名詞解釋

對不具溯及效力之新制定條文，得否作為「法理」 而適用於該法施行前成立之法律關係？ 原則應予否定，僅於例外符合各該法律行為之目 的及性質時，得以個別條文作為法理而適用。 亦即，須若無此規定時，亦得以該規定所涵蘊之 法律原則認作法理而為適用，即該規定具體化一 可資補充法律不備之原則。 〔參見，王澤鑑，民法總則，2014 年 2 月版，頁 76～79；王澤鑑， 民法總則在實務上的最新發展，台灣本土法學雜誌，第 52 期， 頁 75。〕

法律漏洞與填補 意義：指關於某一個法律問題，法律依其內在目的 及規範計劃，應有所規定而未設規定而言。 填補方法： 類推適用：乃比附援引，指將法律明定的法律效 果，適用到該法律未直接加以規定之事項，而該 事項法律上之重要特徵與該法律所明文規定者相 同而言。蓋相類似者，應作相同的處理，係本諸平等 原則，乃正義的要求。 目的性限縮：法律文義所涵蓋之範圍，由立法意 旨觀之，顯然太廣太籠統，未為必要的區分，未 將不該被一起規定的案例排除出去，故有將其適 用範圍，依其規範目的予以限縮的必要。 目的性擴張：法律文義所涵蓋之範圍，揆諸立法 意旨，顯然過窄，以致不能貫徹該規範的意旨， 故應將適用範圍擴張至該法律所未規範的部分。 創制性補充：當欲處理的案件在實證法上縱使經 過類推適用或目的性擴張，均不能找到其規範依 據時，便有根據法理，試擬規範的必要。 〔參見，王澤鑑，民法總則，2014 年 2 月版，頁 80～89。〕

民法

第一編

總則

第一章

法例

第 2 條（適用習慣之限制） 民事所適用之習慣，以不背於公共秩序或善良風俗者為 限。 第 3 條（書面及簽名之方式） Ⅰ依法律之規定，有使用文字之必要者，得不由本人自 寫，但必須親自簽名。 Ⅱ如有用印章代簽名者，其蓋章與簽名生同等之效力。 Ⅲ如以指印、十字或其他符號代簽名者，在文件上，經 二人簽名證明，亦與簽名生同等之效力。 第 4 條（確定數量之準則－文字） 關於一定之數量，同時以文字及號碼表示者，其文字與 號碼有不符合時，如法院不能決定何者為當事人之原 意，應以文字為準。 第 5 條（確定數量之準則－最低額） 關於一定之數量，以文字或號碼為數次之表示者，其表 示有不符合時，如法院不能決定何者為當事人之原意， 應以最低額為準。

5

80

Ⅰ重要名詞解釋 版之增補，頁 8。〕

精神耗弱 修法後，「精神耗弱」為「因精神障礙或其他心智缺陷 而致違法辨識能力或依其違法辨識而抉擇之能力顯著 減低」所取代，爾後或可將「精神耗弱人」改稱為「低 抉擇能力人」，此屬限制責任能力人，其違法構成要件 該當行為仍具有有責性而犯罪，違法辨識能力或依其 違法辨識而抉擇之能力顯著減低均無關犯罪是否成立 的判斷，均僅屬裁量性減輕刑罰事由。 〔參見，鄭逸哲，法學三段論法下的刑法與刑法基本句型刑法初 探，五版，頁 692～695。〕

精神、身體障礙、或其他心智缺陷 精神、身體障礙，包括病理精神障礙與深度的意識錯 亂與一般人常謂之身體障礙；而心智缺陷、包含心智 薄弱（智能不足）與其他嚴重之精神反常。 〔參見，張麗卿，刑事責任，2005 年刑法總則修正之介紹與評析， 頁 104～105。〕

原因自由行為 原因自由行為是指，行為人於原因階段時，處於完 全責任能力的狀態，故意或過失將自己陷於精神障 礙的狀態，所以，原因是自由的。可是相對於「原 因自由」，行為人於實施違法行為時，卻是不自由 的。換句話說，行為人的「結果不自由」，因為，行 為人在法益侵害之際，已經處於無責任能力的狀 態。原因自由之行為，係由前後相續不可分之原因 階段（原因自由）與行為階段（結果不自由）所構 成，兩個階段應該同時兼顧，故新法第 19 條第 3 項 於 95 年 7 月施行後，已納入上開原因自由行為之理 論，故現行刑法中，原因自由行為已明文化規定。

中華民國刑法

第一編

總則

第二章

刑事責任

種類 故意的原因自由行為：故意的原因自由行為係 指，行為人於完全責任能力狀態時，就具有一定 的犯罪的意思，且故意陷自己於精神障礙的狀 態，雖行為人於實施違法行為時處於無責任能力的 狀態，但無礙於故意犯的成立，因此沒有刑法第 19 條第 1 項的適用。 過失的原因自由行為： 過失的原因自由行為係指，行為人於完全責任 能力狀態時，沒有侵害法益的故意，但預見法 益可能被侵害，行為人也果真於精神障礙狀態 中實現了不法構成要件。在原因行為上，行為 人雖無意犯罪，但在導致無責任能力狀態時應 可預見將會發生的後果，所以，對於無責任能 力狀態中所實現的不法構成要件，仍有過失， 不適用刑法第 19 條。 必須注意的是，飲酒或使用麻醉物品，如果陷 於辨識能力顯著減低的狀態，並且實施違法行 為，依照刑法第 19 條第 2 項處理，與原因自由 行為無關，換言之，行為人如僅自陷於限制責 任能力，仍可依限制責任能力之狀態，處罰其 不法構成要件的行為。由於限制責任能力具有 刑罰減輕的效果，但是否減輕，由法官按個案 情形判斷。 可罰性基礎 例外原則：處罰無責任能力的違法行為，必須做 例外的處理。亦即對於原因自由行為的處罰是「罪 責與行為同時存在原則」的例外情況。 前置說（構成要件說）：本說以為要建立原因自

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由行為可罰性，應將行為時提前至自陷行為本 身，亦即，自陷於心神喪失的行為，就是實施構 成要件的行為；飲酒行為與醉酒後心神喪失所實 施的違法行為，是一個整體的構成要件。自陷於 心神喪失的行為，等於構成要件的著手，已經是 未遂的階段。通說傾向採前置說。 〔參見，張麗卿，原因自由行為，收錄於氏著，探索刑法，頁 41 以下。〕

第 20 條（責任能力─身理狀態） 瘖啞人之行為，得減輕其刑。 ■名詞解釋 瘖啞 瘖者，無聽覺能力；啞者，乃無言語能力之謂。按司 法解釋例所示，所謂瘖啞，專指生來瘖啞或自幼瘖啞 者而言，如成年後受外力而致生瘖啞，或雖瘖而不啞、 啞而未瘖，則不足當之。本法緣於瘖啞人之不能承受 教育、能力薄弱之故，故視為限制責任能力人而於第 20 條明定為減輕罪責事由。 院字第 1700 號（需瘖啞兼備） 刑法第 20 條所謂瘖啞人，自係指出生及自幼瘖啞者 言，瘖而不啞，或啞而不瘖，均不適用本條。 司法院廳刑一字第 727 號（自幼係指七歲） 法律問題： 刑法第 20 條規定：「瘖啞人之行為，得減輕其刑」；而 此所謂之「瘖啞人」，依司法院院字第一七○○號解 釋，係指「出生」及「自幼」瘖啞者而言，而不啞或 啞而不瘖，均不適用本條；則此所課「自幼」，究應以 幾歲為標準，始合乎「自幼」之要件？

中華民國刑法

第一編

總則

第二章

刑事責任

討論意見： 依司法院院字第二三三二號解釋：「民法第一千零七十 九條但書之所謂幼，係指未滿七歲者而言。」，而此項 解釋，雖係專就民法第一千零七十九條但書所為之解 釋，但就解釋法律之統一性與整體性言，自亦可作為 刑法第廿條及司法院院字第一七○○號解釋所謂「自 幼」字句之最佳解釋，故所謂「自幼」，當係指未滿七 歲者而言。

第 21 條（依法令之行為） Ｉ依法令之行為，不罰。 Ⅱ依所屬上級公務員命令之職務上行為，不罰。但明知 命令違法者，不在此限。 ■名詞解釋

阻卻違法事由（103 行政警察） 行為合致於犯罪構成要件之規定，即可於形式上推定 該行為具備違法性，惟倘該具體行為於實質上僅屬法 益侵害輕微，或為保護另一更重大法益之衝突選擇下 所實施者，無論自法規範之評價或於社會一般倫理觀 念上，均未達於無法容忍、不能接受之程度，則該初 步推定之違法性即受推翻，而不得認為具有違法性。 針對此類足以排除藉由構成要件所推定之違法性的事 由，學理上稱之阻卻違法事由。刑法總則於第 21 條至 第 24 條所例示規定者，一般稱法定阻卻違法事由；其 餘未見諸法文而仍具有排除違法性之效力者，則稱超 法規阻卻違法事由，例如：得被害人承諾、自救行為、 義務衝突行為（針對不作為犯始得適用）等。 第 22 條（業務上正當行為） 業務上之正當行為，不罰。

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第 23 條（正當防衛） 對於現在不法之侵害，而出於防衛自己或他人權利之行 為，不罰。但防衛行為過當者，得減輕或免除其刑。 ■名詞解釋 過失與正當防衛 在二階層犯罪體系中，非正當防衛的本身就是不法要件 之一。犯罪的各個不法要件，其決定不法之意義與功 能，並不會因為故意犯罪或過失犯罪而有所不同。就好 像傷害罪當中的傷害一要件，固然是故意傷害罪的不法 要件，也是過失傷害罪的不法要件。因此，如果此一問 題具體要問的是行為人對於侵害者為正當防衛行為 時，因為過失而傷害到其他人的刑事責任問題，那麼如 上所述，對於第三者不得主張正當防衛，而如果問題的 意思是說，行為人不知正當防衛情狀而為正當防衛，那 麼這是屬於意外正當防衛所要討論問題。 〔參見，黃榮堅，基礎刑法學（上），四版，頁 249。〕

誤想正當防衛 構成要件該當行為得否阻卻違法，必須檢視是否存在 有阻卻違法的主觀要件與客觀事實情狀。例如：客觀 上必須存在有現在違法侵害的事實情狀，而且防衛者 主觀上必須具備防衛意思，才符合阻卻違法的正當防 衛（§23）的要件。惟在客觀上倘若並不具有現在正在 進行中的違法侵害狀態，行為人卻誤以為遭到現時的 違法侵害而實施反擊的防衛行為，這即是學說上所稱 的誤想正當防衛。 〔參見，林山田，刑法通論（上），十版，頁 438。〕

偶然防衛 所謂偶然正當防衛（意外正當防衛），情況正好和上 述的誤想正當防衛相反。誤想正當防衛是行為人主

中華民國刑法

第一編

總則

第二章

刑事責任

觀上以為是正當防衛，但是客觀上並不是正當防 衛。意外正當防衛是，客觀上是正當防衛，但是行 為人主觀上不知道是正當防衛。 按照通說的處理方式，既然行為人沒有所謂的防衛 意識，就不是正當防衛。 然而，通說處理偶然正當防衛，如果理論一貫，那 麼和誤想正當防衛的情況一樣，是把正當防衛概念 單獨挑出來檢驗其客觀要件和主觀要件。結果是， 偶然正當防衛的行為人由於主觀上欠缺防衛意識， 所以並非正當防衛，從而構成故意或過失的既遂犯 罪。對於如此的處理方式，如上所述，以主觀上認 知侵害情狀的不存在，而單方面的否定了阻卻客觀 不法的可能性，是忽略了客觀不法在不法結構中的 地位，違背刑法犯罪結構之基本概念。 〔參見，黃榮堅，基礎刑法學（上），四版，頁 247～249。〕

對物防衛 刑法上之正當防衛權以對於人類不法侵害為其前提， 若源自動物野獸之攻擊，除符合緊急避難要件而得適 用刑法第 24 條規定外，並無主張正當防衛之餘地，是 以，現行法並不存有所謂對物防衛之問題。惟倘動物 係於特定人有意驅使支配下，用以實現侵害目的之「工 具或手段」，縱外觀上狀似對物防衛，然事實上係對該 驅使利用人主張防衛，故本質上仍屬於對人之正當防 衛。 挑唆式（後）的正當防衛 張麗卿教授：即挑撥他人，惹起侵害，再加以反擊， 此時挑撥者是否得主張正當防衛，須視挑撥行為不 法與否而討論之。 挑撥行為是不法行為：

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