Research On The Duress Negating The Crime And Its Nature

Duress is a very special kind of behavior in the criminal law. It is generated by people’s threats. The purpose for the stressed person to conduct criminal behavior is to avoid the threats content to become reality. There is distinguished difference between stress behavior and normal behavior or criminal behavior.In foreign criminal law theories, it is called "the most difficult defense to define and justify." Defferent countries have great controversy for the legal nature of stress behavior negating the crime.At present, There are two forms of definition and legislation for duress at home and abroad:One is including duress within the scope of emergency hedge; the other is differentiating duress from emergency hedge. In civil law countries, represented by Germany and Japan, duress is often included in the provisions of the emergency hedge; In common law countries as well as France and Italy, duress and emergency hedge are regarded as two separate areas, their constituent elements, legal nature and legal consequences are quite different. In China’s criminal legislation, the special nature of duress is reflected in the provisions of the coerced offender. The provisions of Article28of the Criminal Law of China makes duress having the characteristics of joint crime, and makes it a kind of patterns of joint. It makes it different from the common law practice, but also from the general habits of the civil law. Under conditions expressively provided by law, Emergency hedge general conditions can not be applied, so in reality, there has been the controversy concerning duress qualitative, and also dispute of conviction and sentencing for this type of cases in judicial practice.By comparing the provisions concerning duress and emergency hedge in the criminal law of common law countries and civil law countries, the author confirm that duress has duality on negating the crime, that is negating the illegal and negating the responsibility. At the same time, the author try to sort out the relationship between stess behavior, emergency hedge and coerced offender, and determine how to convict and sentence.