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发帖数: 32207 | 1 【 以下文字转载自 Military 讨论区 】
发信人: pandamalone (0000~史前圣灵猫熊), 信区: Military
标 题: 科普一下Florida Statute中与合法自卫有关的条款
发信站: BBS 未名空间站 (Sun Jul 14 14:33:16 2013, 美东)
Florida Statute最新版本是2012年的,全文可以在这个链接找到:
http://www.leg.state.fl.us/Statutes/index.cfm?StatuteYear=2012&
关于自卫的规定在
TITLE XLVI CRIMES
Chapter 776 JUSTIFIABLE USE OF FORCE
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_
首先是对使用非致命武力进行合法自卫的规定,以及何种情况可以使用致命武力自卫:
776.012?Use of force in defense of person.—A person is justified in using
force, except deadly force, against another when and to the extent that the
person reasonably believes that such conduct is necessary to defend himself
or herself or another against the other’s imminent use of unlawful force.
However, a person is justified in the use of deadly force and does not have
a duty to retreat if:
(1)?He or she reasonably believes that such force is necessary to prevent
imminent death or great bodily harm to himself or herself or another or to
prevent the imminent commission of a forcible felony; or
(2)?Under those circumstances permitted pursuant to s. 776.013.
简单的说,当某人为防卫(注意是defend,不是prevent)即将加身的非法武力时,可以用武
力自卫,但不能使用致命武力.但当处于以下两种情况,即
1.有理由相信必须使用致命武力才能免于(prevent)即将产生的对自己或他人的死亡或
严重人身伤害,或制止暴力严重犯罪时,
或
2.符合776.013所规定的情况时
这里的"暴力严重犯罪"的定义在776.08:
776.08?Forcible felony.—“Forcible felony” means treason; murder;
manslaughter; sexual battery; carjacking; home-invasion robbery; robbery;
burglary; arson; kidnapping; aggravated assault; aggravated battery;
aggravated stalking; aircraft piracy; unlawful throwing, placing, or
discharging of a destructive device or bomb; and any other felony which
involves the use or threat of physical force or violence against any
individual.
也就是包括叛国,谋杀，误杀，性侵，劫车，抢劫，入室抢劫，入室盗窃，绑架，纵火
，重度（aggravated）侮辱，重度攻击，重度尾行（stalking），非法投掷爆炸物，以
及其他针对个人的使用或威胁使用武力的犯罪行为。
其次776.013对何种情况可以默认面临前述威胁,尤其是家防的情况,进行了进一步定义:
776.013?Home protection; use of deadly force; presumption of fear of death
or great bodily harm.—
(1)?A person is presumed to have held a reasonable fear of imminent peril of
death or great bodily harm to himself or herself or another when using
defensive force that is intended or likely to cause death or great bodily
harm to another if:
(a)?The person against whom the defensive force was used was in the process
of unlawfully and forcefully entering, or had unlawfully and forcibly
entered, a dwelling, residence, or occupied vehicle, or if that person had
removed or was attempting to remove another against that person’s will from
the dwelling, residence, or occupied vehicle; and
(b)?The person who uses defensive force knew or had reason to believe that
an unlawful and forcible entry or unlawful and forcible act was occurring or
had occurred.
也就是说,当对方试图进入,已经进入,或试图将自卫方非法并违背其意愿移出或已经移
出其居所,包括住宅,内有人的车辆,或其他包括帐篷在内有顶部遮挡和可用于过夜的临
时居所,而
自卫方获知此种行为已发生或正在发生时,自卫方可自动默认对方对自己产生需使用致
命武力自卫的威胁.
同时,776.013规定了一系列情况不属于unlawfully entering,比如有亲属关系,租户和
房主间,等等,详细原文见776.013 (2),这里不一一列举.
紧接着776.013规定了所谓的"stand your ground"准则:
(3)?A person who is not engaged in an unlawful activity and who is attacked
in any other place where he or she has a right to be has no duty to retreat
and has the right to stand his or her ground and meet force with force,
including deadly force if he or she reasonably believes it is necessary to
do so to prevent death or great bodily harm to himself or herself or another
or to prevent the commission of a forcible felony.
也即是说,只要自卫一方合法处于当前地点并没有进行非法行为,他在被攻击(注意这里是
说attacked而不是面对imminent use of unlawful force)时无需退让,而可以在原地自
卫,
以暴制暴(meet force with force).并可在满足前述条件时使用致命武力自卫.
在776.013 (4)中则再次重申,凡是非法及强行进入居所的人,默认具有进行非法暴力行
为的动机:
(4)?A person who unlawfully and by force enters or attempts to enter a
person’s dwelling, residence, or occupied vehicle is presumed to be doing
so with the intent to commit an unlawful act involving force or violence.
776.13 (5)则对各种居所给出明确定义:
(5)?As used in this section, the term:
(a)?“Dwelling” means a building or conveyance of any kind, including any
attached porch, whether the building or conveyance is temporary or permanent
, mobile or immobile, which has a roof over it, including a tent, and is
designed to be occupied by people lodging therein at night.
(b)?“Residence” means a dwelling in which a person resides either
temporarily or permanently or is visiting as an invited guest.
(c)?“Vehicle” means a conveyance of any kind, whether or not motorized,
which is designed to transport people or property.
接下来,在776.031里,对使用武力进行其他类型防卫(defense of others)进行规定:
776.031?Use of force in defense of others.—A person is justified in the use
of force, except deadly force, against another when and to the extent that
the person reasonably believes that such conduct is necessary to prevent or
terminate the other’s trespass on, or other tortious or criminal
interference with, either real property other than a dwelling or personal
property, lawfully in his or her possession or in the possession of another
who is a member of his or her immediate family or household or of a person
whose property he or she has a legal duty to protect. However, the person is
justified in the use of deadly force only if he or she reasonably believes
that such force is necessary to prevent the imminent commission of a
forcible felony. A person does not have a duty to retreat if the person is
in a place where he or she has a right to be.
简单的说,他可以使用非致命武力来避免或终止自己的,或自己的直系亲属的,或自己有
法律义务保护的临时居所(dwelling)以外的住宅被擅入,或财物被损坏.而仅有为避免将
立即实施的暴力犯罪时才可以使用致命武力.同样,进行这种防卫无需避让.
最后在776.032里,规定了合法使用武力将免于刑事及民事责任.
776.032?Immunity from criminal prosecution and civil action for justifiable
use of force.—
(1)?A person who uses force as permitted in s. 776.012, s. 776.013, or s.
776.031 is justified in using such force and is immune from criminal
prosecution and civil action for the use of such force, unless the person
against whom force was used is a law enforcement officer, as defined in s.
943.10(14), who was acting in the performance of his or her official duties
and the officer identified himself or herself in accordance with any
applicable law or the person using force knew or reasonably should have
known that the person was a law enforcement officer. As used in this
subsection, the term “criminal prosecution” includes arresting, detaining
in custody, and charging or prosecuting the defendant.
(2)?A law enforcement agency may use standard procedures for investigating
the use of force as described in subsection (1), but the agency may not
arrest the person for using force unless it determines that there is
probable cause that the force that was used was unlawful.
(3)?The court shall award reasonable attorney’s fees, court costs,
compensation for loss of income, and all expenses incurred by the defendant
in defense of any civil action brought by a plaintiff if the court finds
that the defendant is immune from prosecution as provided in subsection (1).
简单的说,如果使用武力符合前述法律条款,那么自卫方将免于刑事起诉及民事责任,除
非武力施加在正在执行公务的执法人员,且自卫方当时明确其身份.执法机构可以对自卫
案件按标准程序进行调查,但直至确定所用武力可能非法,不得对当事人进行拘捕.若进
行起诉后辩方被判符合上述免责的情形,则法庭需补偿给辩方合理的律师费用,法庭费用
,误工费,及相关民事诉讼中应诉所产生的一切费用.
还要补充的是,776.041规定了何种情况不适用上述条款:
776.041?Use of force by aggressor.—The justification described in the
preceding sections of this chapter is not available to a person who:
(1)?Is attempting to commit, committing, or escaping after the commission of
, a forcible felony; or
(2)?Initially provokes the use of force against himself or herself, unless:
(a)?Such force is so great that the person reasonably believes that he or
she is in imminent danger of death or great bodily harm and that he or she
has exhausted every reasonable means to escape such danger other than the
use of force which is likely to cause death or great bodily harm to the
assailant; or
(b)?In good faith, the person withdraws from physical contact with the
assailant and indicates clearly to the assailant that he or she desires to
withdraw and terminate the use of force, but the assailant continues or
resumes the use of force.
简单的说,以下情况不适用前述自卫条款:
1.如果当事人试图或者正在进行暴力犯罪,或完成犯罪正在逃脱时
2.当事人主动挑起事端导致对方使用暴力,除非
(a) 对他使用的暴力已构成死亡或严重人身伤害威胁,并且他已经用尽一切其他可能逃
避攻击,仅能使用可能导致攻击方死亡或严重人身伤害的手段才能避免进一步暴力时
(b) 当事人主动避免身体接触,并明确同对方表示愿意停止使用武力,但对方仍继续使用
武力.
Florida Statute 776中还有其他条款,主要关于执法人员使用武力的情况,及暴力犯罪
一方
的民事责任,这里不一一说明.有兴趣的朋友可以点击文章开头给出的全文链接进行阅读
和参考. |
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