Research On The Legal Nature 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 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 crimein the criminal law, the penalty is not given? What is the The legal nature of necessity? This article is based on a study of this issue.The first part of the article definite legal nature the of necessity. At home and abroad, some scholars use the "the Justifiability of necessity". Some scholars have used "the reason of exempt 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 legal nature of necessity ", and briefly explain the reasons for the use of the expression.The next part of the paper is based on the doctrine of necessity and comments. Civil Law mainly concluded "theory of excluding illegal nature" and "theory of excluding duty" and "the theory of distinction". 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. At the same time, 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. In Criminal Law of China, although the necessity is not considered a crimein the criminal law, the penalty is not given, but there is a controversy that necessity is a kind of right or not.On the basis of the existing theories, the author decide to research legal nature of necessity by looking for the defects of the theories and inquirying the signification and social infrastructure of necessity.I believe that the legal nature of necessity under different circumstances is divided into two types:legitimate necessity and the necessity of no responsibility. This paper challenge the theory of "general interests", deny the existion of the "collision" that in the necessity. The author defined the relationship which is in necessity as a "dependent relationship", and find a new basis for legitimacy of the the necessity. Moreover, the paper adopt theory based on personal considerations,looked forward to the basis for exemption of duty,when the necessity involving the value of life and other special interests, and proposed a new "the theory of distinction". At the same time, this paper propose legislative proposals for Criminal Law of China.