Study On Necessity

As a legitimate definition of justified necessity lies in a very important position in the legislative and judicial practice of domestic and international Criminal Law. Based on China’s criminal legislation, the essay adopts the method of comparative analysis of necessity on the basic theory and practice problems, and systematically illustrates the evolution, the conditions and justified establishment of necessity. Besides the preface, the essay is divided into nine chapters, about 210,000 words.The preface. This section introduces the main motive of the author’s writing, and This section focus on research methods and focal point. First, with combination of different historical periods of social and cultural, this section illustrates the history and social and cultural foundation of necessity. In the same time, this section points out: on the one hand, necessity is closely related to the evolution of human knowledge; on the other hand, it is accompanied by social and cultural values of humanity gradually mature. Secondly, this section pointes out in the study of methods author takes a comparative analysis of the main methods of analysis of the basic problems of necessity.The first chapter, an overview of necessity. This section summarizes the first analysis of the different legal systems development under the context of necessity, pointing out that the necessity at home and abroad has undergone the three stages of embryonic development, development and maturity. Secondly, this section also illustrates the concept of necessity and the type on it. It is the so-called necessity that if a person is compelled to commit an act in an emergency to avert an immediate danger to the interests of the State or the public, or his own or another person’s rights of the person, property or other rights, thus he causes damage to the legitimate interests of other smaller acts. At the same time, according to different standards, necessity can be divided into:negates the law of necessity and negates the responsibility of necessity, statutory necessity and super- statutory necessity, necessity of protecting national rights, necessity of protecting public rights, necessity of protecting personal rights, defensive necessity and offensive necessity, state of emergency and emergency relief.The second chapter, the base of necessity. First of all, this part illustrates the theory of the civil law legal systems of Britain and the United States criminal law and criminal law of necessity, and combined with the difference of crime analysis system illustrates the base of necessity is unconformity with crime constitution in our country, thus not illegal. Secondly, on the justified basis of the problem of necessity, it is more appropriate to measure the benefits that the law is based on very nature can be either a provident society. Finally, this part of ethics and law from the perspective of philosophy and Analysis of an emergency in accordance with the hedge. From the human point of view, emergency to avoid danger is to the Penal Code in accordance with this critical moment of his own weakness of both the tolerance and humanity; From the perspective of philosophy of law considerations, of necessity is based on the requirements of utilitarianism.The third chapter, the causes of the conditions of necessity. This section focuses on the risk of necessity arising from the target and the source of the danger. First of all, the object of the risk level in real terms should be understood based on the protection of objects of necessity, in essence, it is to protect the needs and interests should be protected. At the same time, the object of the risk of facing the risk of danger to be reality. Secondly, In addition to the source of the danger from external sources, Himself in the hedge the risk of those who should be in accordance with specific circumstances to determine whether to allow emergency hedge.The fourth chapter, necessity objective conditions of behavior. This section focuses on the emergency acts of "last resort" and the object of conduct and behavior of society fairly. First of all, in addition to the requirements as the only means to avoid the risk, the emergency acts of "last resort" also stressed the risk of damage caused by the act in the least. Secondly, the act of necessity, from the perspective of the substance of the understanding that as long as it is less damage to the legitimate rights and interests of others into a real danger to protect the legitimate rights and interests, then this was the damage the legitimate rights of necessity belongs to the object of conduct, from the point of view of form is of necessity in addition to the implementation of the rights and interests of actors other than their own legitimate rights and interests of holders of the main, but other than human life. Finally, the behavior of the community rather that the escape behavior by the community concept is generally considered to be justified, or society can be recognized by most people.The fifth chapter, mean of avoidance of person. This section focuses on the necessity of subjective aspects of risk. Acts as a social significance of the act, of course, people should be conscious of the activities and the will. Therefore, under the meaning of the acts of dominance can be regarded as acts of necessity. At the same time, subjective psychological form of necessity includes the deliberate and fault.The sixth chapter, limit of necessity. This section points out the difference of defensive and offensive limits of necessity. In defense of necessity, the interests of invading is no more than the preservation of the rights and interests. In offensive of necessity, the interests of invading must be less than a dangerous threat to the legitimate rights and interests. It is Determine not be an abstract measure, but the judge specific cases.The seventh chapter, main conditions of necessity. Criminal law points out avoiding the own risk is not apply to person who has a specific responsibility in duties or the business. The reason is that people who have specific responsibilities have a particular obligation to tolerate risk. However, such obligations are not specific tolerance is a specific obligation, but a certain limit. In other words, Specific responsibility can be implemented necessity outside the obligations in the tolerance.The eighth chapter, hypothetical necessity and excessive necessity. It is hypothetical necessity that the person implements necessity under the mistaking the subjective existence of the risk of objective reality. At this time it may be established criminal negligence or accident. It is excessive necessity that the act of necessity is more than the necessary to limit, not only the limits of behavior. Therefore, excessive necessity includes:more than last limit and limit of necessity. The form sin of excessive necessity may be the deliberate or negligent.The ninth chapter, necessity and other reason to excluding criminal. First, necessity and self-defense. When person is attacked with animal of owner or no-owner spontaneously, he can implements necessity. In addition, the necessity for the act of self-defense can not be implemented, but they can implement necessity. Second, duress should deal with the principles of necessity. Third, Obligations conflict and necessity stand side by side as justified subject, but there are some differences between its.