Issues On Duress In Criminal Law

Duress originated in common law countries, common-law countries named it as the venial reason, take it as a "excuse" to a plea, and claim duress in the evaluation and the significance of the law with "necessity" have distinction. Duress and justifiable defence and necessity, belong to the defenses, is an independent legal nature. And in the mainland legal system country, it is not an independent of justifiable defence and necessity, but claims necessity includes duress that both are choice in an emergency situation, have the same place. Duress and emergency basically will be as equal, Durss attached to an emergency, which do not have independenceDuress from the etymological definition of analysis is under the threat of a practical urgency, even though the heart of the perpetrator is not reluctant, but no alternative.From the characteristics of subjective factors, the behavior of people involuntarily; from the analysis of characteristics of social factors, was forced to act endangers others or public interests; from the analysis on the characteristics of value factors, stress and freedom of the will is the corresponding stress the greater the degree of freedom of the will of the relatively smaller, come to forced behavior with hierarchical; characteristics of the objective factors, clear the forced behavior with normative theory of criminal law adjustment.Can be seen from the different national criminal law, the two main provisions of the legal consequences of duress can be divided into two legislative model, one will be forced behavior into a crime areas, the other will be forced to behavior classified as crime category, but advocates of duress is not guilty.In our country’s criminal law theory, Duress is not independent, It has no independent status, But attached to the top of the emergency and rehictant, In tradition that duress is the combination, of emergency hedging and Rehictant Duress is not the same as our country’s coerced offender. More is not equivalent with the emergency in our country’s Criminal Law. Two are not completely equal. It is need to define clearly the difference between the two.Through reasonable discrimination to recognize that the meaning of duress should be defined more clearly and avoid unnecessary confusion and ambiguity and make it more completely and clearly. In our country’s criminal law, it is clearly provided. A part of forced to the behavior is the exemption subject matter. Duress as a defense subject matter of the common law countries. It contains many parts, it is not simply of that duress is illegal negateing subject and also it could not be considered Ground for Elimination of accountability. The two should be unified view. To our nation’s conditions, a part of duress should be forced to conduct for the exemption, under the premise that the perpetrator is seriously threatened, such forced to behavior can be establish as a defense and do not pursue the criminal liability of the perpetrator to make the crime and the penaltyphase and form a reasonable penalty system. Course, such duress is expressly provided for the exemption subject matter and makes the scope of application clearly and concretely. Proceed from the main surface of the legislative, judicial practice, and improve our country’s forced to the provisions of behavior and rehictant.