摘要 在我国正当防卫制度的重塑过程中，“法不能向不法让步”是奠定基调的指导理念。此法谚起源于19世纪德国学者贝尔纳的名言“Das Recht braucht dem Unrecht nicht zu weichen”，意为“权利无须向不法让步”，其强调作为实体的权利，要通过显示不法的虚无以自证。之后，由于法确证原则支持者的使用，此句名言在德国学界广泛流传，成为法确证原则的表征，内涵转变为“法无须向不法让步”。此言的要旨为，防卫人替不在场的国家机关维护了具有至高价值的法秩序，故无须退避和法益衡量。我国的“法不能向不法让步”虽直接移植于“法无须向不法让步”，却有相对独立的内涵。与“法无须向不法让步”的行为规范属性不同，“法不能向不法让步”系裁判规范，旨在要求司法机关积极适用正当防卫条款出罪，以鼓励公民行使正当防卫权来维护法秩序，借此司法机关间接地履行了自身抗击不法侵害、维护法秩序的义务，尽到了确保法不让步于不法的职责。
Abstract：In the past, cases involving self-defense were relatively rare in China’s judicial practice, reducing the justifiable self-defense to a “zombie provision”. To address this issue, China’s judicial system established the principle that “law must not yield to wrongness”. Over time, this principle has gained widespread influence and become a well-known legal proverb in Chinese society. However, this legal saying is not uniquely Chinese; it originates from the famous quote “Das Recht braucht dem Unrecht nicht zu weichen” initiated by the 19th-century German criminal law scholar Berner. The translation of this phrase has been a subject of controversy within the Chinese criminal law community. An in-depth study of Berner’s work reveals that the original meaning of the phrase is “rights need not yield to wrongness”, based on the Hegelian concept of rights as “entities” and demonstrated by showing the “nothingness” of lawlessness. Later, proponents of the principle of legal confirmation embraced this phrase. It subsequently gained widespread circulation within the German criminal law community. Over time, its meaning evolved into “law need not yield to wrongness”, where “law” refers to the actual or normative effect of the entire legal system, and “wrongness” refers to illegal acts that involve both worthless behavior and a worthless result. The mechanism ensuring that “law need not yield to wrongness” lies in the double negation: the “negation of the obligation to retreat” and the “negation of the measure of legal interest”. The “negation of the obligation to retreat” means that a defender can directly resist an unlawful intruder in the face of unlawful infringement, while the “negation of the measure of legal interest” emphasizes that, when determining whether the act of defense exceeds the limit, it is unnecessary to compare the intensity or strength of the defensive act and the infringement, nor the legal interest damage caused by both. It suffices to assess whether the defender’s measures are both effective and proportionate to the circumstances. Although China’s principle that “law must not yield to wrongness” is directly transplanted from “law need not yield to wrongness”, it has acquired an independent local connotation due to the difference between the modal verbs “must not” and “need not”. Unlike the principle that “law need not yield to wrongness”, which serves as a guideline for ordinary citizens, “law must not yield to wrongness” is a judicial norm aimed at requiring judicial bodies to actively apply the provisions of justifiable self-defense. This encourages citizens to exercise their right to self-defense in order to maintain legal order, thus enabling judicial bodies to fulfill their obligation to combat wrongness and uphold the rule of law. However, in China’s judicial practice, the necessity theory—rather than the two-element theory based on fundamental adaptation theory—has not been adopted in determining the limits of self-defense. This has led to a failure to fully implement the principle that “law cannot yield to wrongness”.
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Xu Wanlong. Law Cannot Yield to Wrongness: The Evolution and Interpretation of a Legal Proverb. JOURNAL OF ZHEJIANG UNIVERSITY, 0, (): 1-.
