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Criminal Regulation On Forced Act

Posted on:2012-04-02Degree:MasterType:Thesis
Country:ChinaCandidate:K ZhangFull Text:PDF
GTID:2216330338963639Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
The forced act works as a defense reason in the criminal law of common system,where the forced act is called intimidation or constraint.The forced act called act of rescue in most countries of civil law system is regulated unwilling follower in our criminal law. Some corporate requirements are indispensable to the forced act.once an act is treated as forced act,it will rise some legal consequences:declaring a crime,but to reduce or exempt penalties;not constituting a crime.In the criminal procedure the accused may put forward that he was forced,but there are some difference on the mention and the burden of proof to the forced act between common law system and civil law system.In common law system,the forced act include intimidation;physical constraint and environmental constraint.In our country,some scholars think the crime theory system of common law system is constituted by basic elements of crime and sufficient elements of responsibility,and the forced act makes the liability sufficient.In fact,the crime theory system of common law system is formed by criminal action and criminal mind.The forced act carried by the accused does not dealt as crime,the reason is that the forced acts may not meet the criminal action or criminal mind.Most countries of civil law system put the forced act in the act of rescue,but there are several countries give a special regulation to the forced act with law clause,France and Ataly are its representatives.In the three_level criminology system of the continental legal family,there are different understandings between illegality and liability attribute,most countries hold that the forced act resists invalidity rather than resists liability attribution.In fact,the act carried under physical constraint is a justifiable cause;the act conducted under intimidation which causes minimal damage is a justifiable cause, the act conducted under intimidation which causes significant damage is a stop reasons for liability.The man whose forced act caused damages to the legal interest don't be punished as criminal, even his act is treat as crime, he can get lighter or mitigated punishment. The following three ingredients is its academic foundation;libertarianism, the man facing death or GBH hardly have free will, because his free will is strictly limited; the theory of probability of expectation,we can't expect the man accept the death or GBH; tendency of turning criminal law into criminal policy, treating the forced act with innocence or mitigated punishment_a theory of criminal policy.In our country's criminal law, the forced act is stipulated in the impeccant event physical constraint,the accomplice under duress,the act of rescue. Our country's regulation about the forced act causes a huge controversy,so many scholars argue that we should delete the rehictant followers. Stipulating the rehictant follower as one kind of criminal is inconsistent with the internal common practice, and the regulation will lead to logic conflict with principal and accessory. The act conducted under intimidation may constitute the act of rescue, if we treat this act as crime,this will cause conflict with act of rescue.It is because the regulation about the coerced accomplice isn't scientific,so we should abolish the coerced accomplice.Then we should give this kind of act a shorting operation:the act which is in accordance with the constitutive requirements of the act of rescue should be treated according to the act of rescue; the man whose act is a crime according to criminal law should be treat as the accessory. Moreover, physical constraint should be treated as force majeure; environmental stress should be treated according to the act of rescue.
Keywords/Search Tags:Forced Act, Criminal Regulation, Unwilling Follower, Act of Rescue, Physical Constraint
PDF Full Text Request
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