On The Criminal Status And Regulation Of Duress

Duress refers to an act that a person is compelled to commit in a menace to avert an immediate danger to the state or public interest or to his own or another person’s rights or property rights or other rights. Objectively, duress causes harm to public interest or other person’s rights from the aspect of social interests. Duress can be divided into five categories according to different standards, among which cause of non-imputability and circumstances of sentencing is the basic category.There are two requisites for duress, and the existing menace is a prerequisite. The menace comes from human being rather than environment, the object could be the compelled person and the third party, and the content of menace concludes life, health, freedom, reputation, privacy and property. There is also time requisite, which is the danger is in progress and urgency.Duress theory has a complete independent legal status in common law. Any duress in accordance with the law can be a legal defense, i.e."an excuse", which is different from "justifications" such as necessity and justifiable defense. On the other hand, Duress has no independency in civil law, but viewed as a kind of necessity.The notion of duress is not clearly defined in China, like in any other civil law countries. In China, duress is under the regulation of Article21(necessity) and article28(coerced accomplice) of the current criminal law, which is unreasonable. Firstly, duress is different from necessity in source of danger, behavior object and criminal character, which leads to that duress, should have independent legal status and form a separate cause of non-imputability. Secondly, any who are forced to commit a crime should not be viewed as coerced accomplices. Instead, it should be accurately defined as "offender under duress", which is a type of circumstances of sentencing in criminal law. Therefore, duress is an independent legal concept in China that possesses binary feature, i.e. cause of non-imputability and circumstances of sentencing, the distinction of which is balance of legal interests.Based on the discussion above, the author suggests that the legislation of duress should consist of three steps. First of all, clarifying the classification of joint offence and cancelling regulations about coerced accomplice. In the second place, defining the concept of duress explicitly and stipulating that actions under duress are independent exemptions under certain conditions. In terms of orientation in criminal law, duress should be viewed as another due cause beyond necessity and justifiable defense. Last but not least, criminal responsibility shall be borne if an act committed under duress to avert danger exceeds the limits of necessity and causes undue harm; however, a mitigated punishment or exemption from punishment shall be given.