Rethinking The Justifiability Of Necessity

Necessity called "an emergency" and "emergency" or "emergency ambulance conduct" generally refers to the country. Public interest, or any other person's personal, property and other rights are taking place against the danger no alternative but to harm the legitimate interests of other smaller acts. To protect themselves or others, the state or public interest, Necessity damage to the legitimate interests of others. So why necessity is not considered a crime in the criminal law, the penalty is not given? What is the Justifiability of necessity? This article is based on a study of this issue.The first part of the article definite the Justifiability of necessity. At home and abroad, some scholars use the nature of necessity. Some scholars have used the reason of exempt of necessity; there are scholars who use the concept of the nature of the law of necessity. I believe that to some extent there is a certain interpretation of these defects. Analysis of them, I put this statement in accordance with the Justifiability of necessity, and briefly explain the reasons for the use of the expression.The second part of the paper is based on the doctrine of the Justifiability of necessity and comments. Most of this can be divided into three smaller parts.Viewpoints of the Justifiability of necessity are listed in the first smaller part the Justifiability of necessity, and I comment the Viewpoints of the Justifiability of necessity. Here, the author lists the main Germany, Japan, France, Italy and China's Taiwan region part of the academic perspective. After citing viewpoints, I comment the Viewpoints of the Justifiability of necessity. We found that the dispute between the civil law countries and scholars is necessity is based on personal considerations as legislators, or based on the general interests.The author believes that the lack of expected behavior from the perspective of understanding the Justifiability of necessity, there is a legitimate basis for a reasonable nature. But just as a basis, it was unable to explain why the law allows actors to implement the emergency act for interests of the country, society, others. Law measurable benefits from hedging perspective to understand the Justifiability of necessity are based on certain reasonable. But merely as a basis for the legal provisions, we can not explain why legislators use of the term "human behavior or another." "Behavior for its own convenience or" such wording. In fact, both acts solely from the perspective of a lack of anticipation or solely from the perspective of law measurable benefits are not entirely reasonable given legitimacy under the emergency to avoid danger. The correct method is to unify measure the interests of law and lack expect possibility, common used to explain the Justifiability of necessity.The points of the Justifiability of necessity of common law countries are cited in the second smaller part and the author analyze those points. The author found that the differences between the criminal law scholars of the common law countries when they consider the issue of necessity are in accord with the differences between the criminal law scholars of the civil law countries, that is, some scholars consider the Justifiability of necessity from the Perspective of the a lack of anticipation while some scholars consider the Justifiability of necessity from the Perspective of measurable benefits.The points of the Justifiability of necessity of china are cited in the third smaller part and the author analyze those points. In China's Criminal Law, there is a controversy that necessity is lawful useful or not. In my view, the controversy does not make very much sense. It should be noted that pondering the question of the Justifiability of necessity, Chinese scholars tend to combine the interests of the measure with a lack of anticipation. This is worthy of recognition. However, there are scholars who Inexistence solely from the perspective of the interests of the measure to understand the Justifiability of necessity. As mentioned earlier, both single or from the possibility of looking solely from the perspective of measurable benefits to understand the law, have not been given a reasonable explanation. When we regard the Justifiability of necessity, we must unify the two Perspectives.The third part of the thesis is to rethink the Justifiability of necessity. In the civil and common law and the legitimacy of our existing emergency basis points in order to avoid danger, We may discover that while all other legal systems, all based on the legitimacy of the state of emergency hedging specific views vary ,However, according to foreign scholars pondering the Justifiability of necessity, the same principle applied. "Interests" and "looking forward to the possibility of" hedging had become a scholar explained legitimacy based on the two basic emergencies accurate. Moreover, the two countries have moved beyond the legal benchmark traditional boundaries。In view of this, we consider the Justifiability of necessity; we can not deviate from these two basic tenets. "Weigh the benefits against the pros" and "looking forward to the possibility of judgment" We think the issue should be the starting point. However, in accordance with the thinking of the legitimacy of avoiding danger, we can not be confined to these two benchmarks; we should explore these two benchmarks based on the underlying value of the Justifiability of necessity. Only in this way that we can truly understand the Justifiability of necessity.So "the interests of the measure" and "looking forward to the possibility of" the implication behind what is the value? In my view, "interests of the measure" and "looking forward to the possibility of" two benchmarks just tell people to think of the two perspectives, one is the human perspective, and another is the just perspective. Based on these two perspectives, first of all, I conducted an overview of human nature; humanity is rational and non-rational come to a unified conclusion. Then based on the conclusions of humanity。 Secondly, the authors summarize again for justice, justice reached the standards, the basic standards of justice and legitimacy for avoiding danger, just thinking.The final part of the paper is conclusion. From the human point of view, avoiding of an emergency penal system is the rational and non-rational concerns of a humanized system. From the point of view of justice, Necessity system as a standard of justice is in line with the justice system.