Several Issues On Duress In Criminal Law

Duress refers to such an act which is carried out by the actor under other's duress, similar to committing a crime but available for legal defense in the light of certain conditions. As a ground for exemption which can be used for legal defense, the definition of duress can only be seen in criminal laws of Anglo-American law system. On the contrary, there is no duress in criminal laws of continental law system. The relative contents can be seen in necessity. The argument of academic circles on duress mainly relates to two problems: the one is whether duress has illegitimacy, the other is how to choose the theoretical basis of duress, and the two problems are tightly related. In addition, on the present, the research made by our country's academic circle on duress is still not rather deep, there is broad theoretical space for us to occupy. For example, theory of probability of anticipation is always regarded as an important theoretical basis of duress, however to locate it in our theory of crime constitution system? Our country's academic circle has still been exploring.On the basis of overall inspecting the theory of duress in criminal laws of Anglo-American law system, comparing the relative theories in criminal laws of continental law system the author made the research on the character of duress. Furthermore, the author put forward viewpoints on the choice of theoretical basis of duress and the fixed position of it in our theory of crime constitution system. The whole thesis includes three parts:The first part is general introduction of duress. In this part, firstly, the author elaborates in detail the definition and requirements of duress. According to the traditional stand point of criminal laws of Anglo-American law system, duress is not a legitimate ground which could be used for legal defense, but merely an excusable ground. The reason is that, in the opinion of criminal laws of Anglo-American law system, duress brings about damage undoubtedly, while considering the weakness of human nature; the actor could be forgiven subjectively by criminal law. Strict restriction is made by traditional criminal laws of Anglo-American law system against the establishment of duress; moreover, the negative factors which are particular enough to exclude legal defense are also ruled. The author concludes these requirements into seven points: degree and method; authenticity; emergency; target; effect; limitation; conditions against duress. Secondly, the author compares the relative theories of the two law systems and makes the basic analysis and comment. Following the development of relative theories, the restriction against the establishment of duress are loosen and broken gradually, generally, the law pays more attention to how to guarantee the justice claimed by the actor. In addition, the voice given out by those who maintained duress as a legitimate ground is also lingering in ears, and its challenge against the traditional points is powerful. Confronting duress, the problems need to be dealt with by criminal laws of continental law system is the same as them in criminal laws of Anglo-American law system. Theoretically, the former put forward more and deeper theories. Besides of those similar to the latter, scholars from the continental law system pays more attention to research the problems standing on more angles. Discussion on legal interest, free will and probability of anticipation impels people to understand duress deeply and comprehensively.The second part is research on the character of duress. In this part, the author firstly analyzes legal interest and probability of anticipation; both of them are tightly related to duress. Through analyzing the definition and function of legal interest, the author put forward his viewpoints, and they are: though the actor encroached on a legal interest undoubtedly, he also protected another which was threatening intensely, and the two legal interests should be both recognized and protected by criminal law. According to legal interest, the effect of duress can be divided into two situations: the first one is the value of legal interest being encroached on is less than the one being protected; the second one is the two values is equal. To judge whether duress can become a legitimate ground according to the standard of legal interest, in the author's opinion, that is possible. Through inspecting and analyzing the theory of probability of anticipation, the author considers that the requirements of duress exclude the probability for the actor to choose legal act under his free will. While the actor executes aggression, he has no free will. The so called free will should be relative. It is not correct for us to think that the actor has free will only because the actor can still choose serious injury or death.On choice of the theoretical basis of duress, the author considers that, though it is more popular for countries to choose theory for elimination of liability as the theoretical basis of duress, which also means there are more scholars who maintain the theory of probability of anticipation as the basis of duress, in the author's opinion, to choose a reasonable theoretical basis, we should judge duress in a specific criminal law system. Since different countries have different lawful characters, so it is normal for countries to choose different theoretical basis of duress. It is also reasonable for a specific country to choose theory of balance of legal interests as the theoretical of duress in its criminal law system.The third part is the fixed position of duress in our theory of crime constitution system. In the author's opinion, our countries crime constitution system is not as flexible as it in the criminal law of continental law system, which can integrate definitions of different qualities in different stages, on the other side, though the theory of probability of anticipation has its advantages, it still needs long time to integrate it into our country's crime constitution system, to choose theory of balance of legal interests as the theoretical basis should be the most reasonable at present. Duress which conforms to balance of legal interests has no differences with necessity on subjective and objective aspects, so we should put it into necessity and recognize duress legitimate. Moreover, in the author's opinion, duress which does not conform to balance of legal interests should be defined as the indulgent conduct but not excessive necessity.