Study On The Necessity

Necessity is one of an important way as case of preventive illegitimacy and case of preventive obligation in the penal code of many countries' law.This article introduction inspected necessity in the Western country and in Chinese ancient times some records, introduced briefly necessity historical evolution.Necessity the position which located in the various countries' crime system to decide this behavior nature formally. In Germany and Japan, the representative of civil law system. establish the criminality need three appraisals: constituents of crimes, illegitimacy, responsibility. The British and American crime system is the "double level" structure system, necessity takes one of general defense reasons. In China present crime system is the "closed" system, according to our country existing law, necessity is one legal behavior.As a result of the crime system difference, necessity act's nature in various countries has the different theory viewpoint, mainly in Germany and Japan, the representative of civil law system has :prevention from responsibility,duplex theory and prevention from punishment. The British and American legal system to the necessity mainly has :the two to select a theory > the reduced harm theory, the environment coercion theory.China in should introduces the civil legal system the triadic appraisal system in the future, simultaneously accepts duplex theory by prevention from responsibility primarily, prevention from punishment for auxiliary theory. Simultaneously unifies the anticipation possible theory, divided elaborated with two kind of situations in the different method profit opposition situation how to localization necessity ,in which elaborated the life and the life opposition nature judgment emphatically.about the condition of necessity in china, has carried on the elaboration from three aspects, first it is about the dangerous condition, second is about the subjective condition, third is the subject condition, fourth is about the boundary condition .Finally the article basis analysis existing China criminal law article insufficiency, put forward author's some legislation proposal.