The Comparative Analysis Of The Emergency System

The emergency, also named emergency shelter in some countries, was one of the negates thatuniversally recognized in the criminal legislation of the world. The emergency system comes from themedieval canon law that “in the emergency situation without law", its meaning can be implemented that ina state of emergency, an act in the normal conditions can be prohibited by law in order to avoid emergencysituations the dangers posed. The emergency generation and self-defense theory has a long history inChina’s criminal law theory, but compared to self-defense system, the study of the emergency theory seemsa bit thin, as some scholars believe that compared to self-defense, the study of emergency system in depth,breadth are still not enough. The emergency system is a common system in the world of criminallegislation, and plays an integral role in people’s social life. Law protects citizens’ rights and interestsequally, but in the event of an emergency situation, the law also can not take into account the interests ofthe everyone’s fair in this case, so need to use the emergency system to guide people to make the rightchoice, so the punishment should come from ethical thinking and the basis of humanity, and focus onanalyzing the essential attribute of the emergency system and its components, as to suit the remedy to theproblems in the actual operation of the emergency system in a targeted manner, in order to enrich andrefine this theory.In addition to the introduction and conclusion, this paper is divided into the following four parts:Part I: An overview of the emergency. First of all, besides elaborating the foreign scholars ‘sunderstanding of emergency, China’s criminal law scholars also put forward different views on the conceptof the emergency, in the analysis of the pros and cons of these ideas, emergency hedge is given a morecomprehensive scientific definition. Secondly, from the ethics, the foundation of human nature of thecriminal law and criminal law Humility three aspects, this part discusses the theoretical basis of theemergency, in order to provide a strong theoretical foundation support to the emergency system. Finally, itdiscusses the historical origins of the Chinese and foreign emergency system comparative analysis. Firstly,elaborates the emergency system in the foreign criminal law. From civil law to common law, discusses theprovisions of the emergency system in the national criminal legislation in detail. Secondly, discusses the emergency system in our Criminal Law since ancient times, as to make people understand the historicalorigins of the emergency more clearly, so that larger enhance the understanding of the emergency system.Part II: The comparative analysis of the emergency nature of properties. First of all, this sectionintroduces several theories the civil law scholars proposed on the nature of emergency, mainly includingthe illegality negates, the subject of responsibility negates, and two Takahashi; Secondly, introduces theUnited Kingdom and the United States’ doctrine on the nature of emergency which represented by commonlaw countries, for instance, necessary acts and the lesser of two evils choose the one; Finally, afterexploring the doctrine of the two legal systems, combined with China’s law, elaborating our scholars ‘viewsabout the essence of emergency, I believe that China’s Tong said that the emergency hedge is lessdamaging to the interests so to protect the larger interests is reasonable in a certain degree, also is consistentwith the equilibrium theory of legal interest.Part III: The comparative analysis of the emergency’s established condition. On the basic of analyzingand summarizing China’s criminal law scholars on the different doctrines of the emergency ‘s establishedcondition, the established condition of the emergency is divided into: First, the objective elements of theemergency, emergency hedge must be a real danger exists, the reality danger must be taking place in andrisk aversion must be implemented in the last resort, and focuses on the danger that sometimes does notexist objectively imminent, but the behavior mistakenly think that there is then based on the hedgeimplements the behavior, such as the hypothetical hedge; Secondly, analyzing the subjective element of thehedging behavior from the f hedge awareness and hedging purposes; thirdly, mainly analyzing the mainelements of the emergency, I believe that there is some truth to make restrictive regulations on the peoplethat with responsibilities in the duties and specific business; Fourth, introduces the limit conditions andproblems that need attention of the emergency.Part IV: A comparison of the undue hedge. From emergency constitutive requirements, it is necessaryto hedge behavior more than limit as the basis is divided into two aspects: emergency and undue hedge. Ahedge is also an emergency undue in the system of an important issue. First of all in domestic and abroadabout hedge of undue analysis and comparison of the paper, to make more accurate undue hedge thedefinition of science; Second from undue hedge the subjective and objective aspects of the components ofthe master hedge excessive; Finally in front of the basis of the theory of criminal law field at home and abroad about the conviction of undue hedge and punishment make detailed discussion, morecomprehensive and accurate determination of undue hedge should criminal responsibility.