《人民警察法》 (修订草案稿) 在规范和保障公安机关及人民警察依法履行职责和行使权力、加强对人民警察监督、建设高素质的人民警察队伍等方面取得重大进步.这是我国实行"依法治警、从严治警"取得重大进展的体现.在比例原则被纳入条文的背景下, 只有认为警察职务防卫行为全面受比例原则约束, 才符合这一趋势.但从刑法角度看, 对正当防卫限度的理解应以"必需"为限.在逻辑关系上, 比例原则的逻辑内涵包容了防卫限度, 特殊防卫并未使这种逻辑关系失效.针对警察职务防卫的规范选择, 存在倾向于刑法及警察法的方案, 前者又可分为"严格刑法方案"与"修正刑法方案".三种一元论的解释都无法独立解释警察职务防卫.警察职务防卫具有二元性, 同时体现了防卫与职务行为关系, 前者受刑法 (正当防卫规范) 调整, 可适用较宽限度标准;后者至少受警察法调整, 必须受比例原则约束.职务行为关系仍然存在刑事责任问题, 但基于这种关系的职务犯罪行为在理论上仍有被"二次"正当化的可能, 只有经过谨慎的分析才能排除这种可能性.在此基础上, 由于对滥用职权罪所要求的"重大损失"存在不同理解, 可分别导致该行为不构成犯罪或构成犯罪未遂.%The draft of the new People''s Police Law embodies the general trend and direction of reasonable restriction on police power in many details. In this context, only when the police defense behavior is fully constrained by the principle of proportionality can it conform to this trend. However, from the perspective of criminal law, the limit of justifiable defense should be limited to "necessity". In the logical relation, the connotation of the principle of proportionality contains that of the defense limit, and the special defense does not make this logical relation invalid. There are two alternatives to the police defense: the criminal law and the police law solution. The former can be divided into the "strict criminal law solution "and the "modified criminal law solution ". None of the three monistic explanations can independently explain the police duty defense. This paper argues that police duty defense is dualistic and embodies a defense and a duty relationship. The former is regulated by criminal law (justifiable defense norm) and can be applied to a wide range of standards. The latter is regulated (at least) by police law and must be governed by the principle of proportionality. After analyzing the legal nature of the draft, this paper argues that beside the criminal responsibility in the internal relationship, the duty crime based on the duty relationship is still theoretically justifiable by a "secondary"possibility, only after careful analysis can this possibility be ultimately ruled out. On this basis, the different interpretations of the "significant loss"required by the abuse of power may lead to the acquittal or conviction (attempted crime). Based on the recognition of the general trend of restricting police power in the draft, this paper agrees with the latter understanding.
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