Comparing Research On The Limit Condition Of Urgent Danger Prevention

The system of urgent danger prevention stems was born of the old legal proverb which is "there is no law in the state of emergency". The modern criminal law of various countries stipulates clearly that urgent danger prevention is not the criminal offence, and it can not be punished. However, the scholars from various countries have different understanding with its theory basis which is contained in the regulation, they also formed different theories. These theories discuss the relevant system of urgent danger prevention from different positions, they are meaningful to be researched as well as be analyzed conscientiously.The thesis adopts the compared tactics, it was divided into four parts to analyze the basic theory, limit condition and ultra limit situation of the urgent danger prevention; it summarizes the continent law, the Great Britain American law and the theory exiting in our academia sector and practice sector, it also briefly discusses the relevant problems.In the first place, the article analyzes the basic theory of urgent danger prevention. First of all, it enumerates the legal regulation of continent law and Great Britain American law of urgent danger prevention as well as analyze its similarity and main difference; Secondly, it analyze the different understanding on the urgent danger prevention of various scholars of different countries; Moreover, it emphatically sums up the nature of the urgent danger prevention. About its nature, there are three theories in continent law. They are Anti- actually illegal theory,Anti- actually responsibility theory,and Separates theory. According to the reason of urgent danger Anti- actually illegal,this theory is further devided into Laissez faire Behavior theory, Uniting theory,illegal be Anti- actualled theory, Anti- actually may punished illegal theory. Anti- actually Responsibility contains non-responsibility theory and non- Anticipation Possibility theory. Separates theory can be devided into Separates theory based on Anti- actually illegal and Separates theory based on Anti- actually Responsibility .Theory In Great Britain American law, the urgent danger prevention is the general pleading reason; there are two theories in the proper basis of urgent danger prevention, which are essential behavior theory and one-of-two hurt theory. With the comparative analysis of these theories, the writer thinks that the difference on urgent danger prevention is caused by of state policies, legal cultural tradition and different understanding of various scholars, so each theory is meaningful to exist. Finally, the thesis analyzes the exiting condition of the urgent danger prevention; it finds the similarity and difference between various countries, for example, both of the need to have present dangers, they can only be implemented under the no alternative condition, but there are some differences, such as the limit condition, which caused the analysis about the limit condition of urgent danger prevention in the second part.In the second place, the thesis analyzes the limit condition of urgent danger prevention. It mainly describes the difference of limit condition of urgent danger prevention between various countries by comparing the view of China and foreign countries; it discusses the limit condition of urgent danger prevention specifically which changes from macroscopic to microcosmic, from summarizing standard to specifically standard. First of all, it introduces the balancing benefit standard of the limit condition of the urgent danger prevention. There are three kinds of situations in abroad, firstly, the damaged benefit of urgent danger prevention should be smaller than protected benefit; and then, the damaged benefit of urgent danger prevention is not greater than protected benefit; thirdly, the damaged benefit less than or equal to protected benefit and it regulates specific smaller and equal situation. There are three theories in our country, which are exist less saying, less add essential saying and equal saying. Secondly, the thesis analyzes the standard of balancing benefit. Generally speaking, the value of the human right is greater than the proprietary, the value of life right occupies the supreme position in the human right; the comparison of the proprietary is based on its size of value; national security and interests occupy the supreme status in all benefits. In the third place, the thesis discusses whether the life right could be regarded as the object of urgent danger prevention. It expounds the whether can we protect the other life by sacrificing a person, whether can we protect the majority's life by sacrificing a person. About the former, there are different ideas because of the different views on balancing benefit in various criminal law countries, such as in Japan, it adopts the theory of " not exceeding ", but in Germany, it adopts the theory of "obviously greater", so this kind of situation is seldom considered to be urgent danger prevention. The Theory of our country has denied the life as the object of urgent danger prevention, we don't allow sacrifice a person's life to protect another life, but some scholars maintain an opposite attitude. There are many different kinds of views about the latter, for example, the famous law expert named Bian Qin holds the idea that sacrificing a person's life to protects others is helpful to increase the society wealth; by contrast, the German expert named Heinrich does not think this kind of situation is allowed. To these two questions, the author holds the positive attitude; I think that sacrificing a person's life to protect other lives can be formed in urgent danger prevention.In the fourth place, the thesis analyzes the ultra limit situation of urgent danger prevention. First of all, it states the ultra danger prevention and analyzes the subjective and objective situation of it. Different countries hold different views on these questions. The continent law thinks that there are two kinds of expression of urgent danger prevention, one is violating"the supplementary principle", and the other is violating"balancing benefit". Generally speaking, there is no doubt on the second kind of expression, but there is difference on the first kind of situation. Some scholars think that harm caused by urgent danger prevention should be least serious in all harms that may cause; some scholar don't agree with it, they think that it is only less serious than prevented harm. To this dispute, the writer agrees with the first kind of view, I think that urgent danger prevention not merely requires the harm caused is smaller than the harm protected, and requires it should the least serious method, only in this way it accords with the condition that "there is no alternative". The academia hold positive attitude on the subjective aspect of ultra danger prevention that an unpremeditated crime may cause ultra danger prevention. They have different views on direct purposely or indirect purposely can constitute ultra danger prevention. The writer thinks that as long as the actor has correct understanding to the harm and don't stop the harm which can be controlled, we should think it is subjectively on purpose. Secondly, the thesis sums up legislation punishment of ultra danger prevention.The scholars of various countries have a great deal of different views on the relevant problem to urgent danger prevention, which proves that this system is worthy studying. This thesis states some ideas by summarizing the summing up of these topics. The writer hopes it could be helpful for our country's theory and practice research as well as benefit the system.