An Analysis On The Troublesome Problems Of The Urgent Danger Prevention In Criminal Law

Urgent danger prevention, also known as emergence refuge, generally refers to the Public interest or any other person's personal property and other rights that are taking place against the danger no alternative but to harm the legitimate interests of other smaller act. To protect themselves or others ,the state or public interest, necessity damage to the legitimate interests of others。In almost every country's criminal legislation and judicial practices, is deemed as a reason of legitimation. Under the situation of emergency, it's not deemed as a crime to damage another legitimate right for the purpose of protecting a greater or equal legitimate right. And it can't be pursuit legal responsibility. Although emergence refuge is an important legal system, there are a lot of disputes about it both in criminal legislation and judicial practices. This paper discussed three of them: the first is the basis of the legitimation of the emergence refuge. The Second is self induced danger and emergence refuge. The third is avoiding the attack of animal and emergence refuge.The first part of this paper will focus on legal basis of emergent refuge. First,I will make list of the theories and then to analyse. After the introuduction and analysis of print of views of the mainland legitimacy. I noticed the scholars in the mainland legitimacy countries mainly explained the legal basis of emergent refuge from the balance of law and benefit or possibily of no expectation. The scholars in America and England of legitimacy are the same as those in mainland legitimacy countries. The origins of scholars have special characters. The view of the scholar in our country that emergenct refuge is legal and should not be charged and punished is consistent .But as for whether emergent refuge is legal acts and will do harm to the society ,they have different opinions, as well as whether it is the legal right for are to take emergency refuge. I think it is partical to explain the emergent refuge deeply with just one theory. Because emergent refuge is a law which includes multi-value system and we should take all the values together as a whole to prove it to be legal. Taking all the theories into consideration, the balance of law and benefit and possibility of no expection are essential theorietial basis. No matter how many values can be the proof of legality. After the consideration of an thories. I try to find the proof of legality of the emergent refuge from aspect of humanity and the balance of law and benefit. The second part mainly discuss self-induced danger and emergent refuge. Self-induced danger and emergent refuge is a dangerous situation which is caused by somebody's purposive action or mistake that make oneself or others be in danger. In this situation, whether it is right to emergent refuge, scholars from each country has their opinions. First I am going to introduce and analyse every theory. And I think it is too strick and cruel for per-negative theory which is against the nature that no law when emergency and law for human being. The per-positive theory will do damage to the fairness of the society. The author divided the self-indulged danger into deliberately self-indulged danger and innocent self-indulged danger based on the subjective factor. In the author's opinion, this is the basic angle for reaching the problems of emergence refuge under the situation of self indulged danger. Whether emergence refuge could be implied depends on the perspective of legal interest, no matter it's deliberately self-indulged danger or innocent self-indulged danger. The author expounds that if emergence refuge could be implied under the situation of self-indulged danger in another perspective. In the perspective of legal interests, when the danger is indulged by the behavior himself, the behavior has the obligation of tolerance other than shifting the danger to other person. In the situation of indulging danger to other person, the behavior has the obligation of positive behavior other than tolerance, that is to say, the behavior has to do something to eliminate the danger he indulged to other person, as the danger has never appeared. At last, the author brought up his own idea on the foundation of the substance dichotomy theory. Finally, in approval of the Takahashi said the substance of two taking everything into condideration as well as the companision of benefit and law. We should analyse the problem after the analysis of action duty and duty.At last, I stick to the difference between emergent refuge and legal defence and I make further study about the law of anti-animal and domestic animal, where there are two different situations. That is driven by people or not. The purpose is to make law on anti-animal attack more accurate and detailed.