Comparative Study On Duress

Duress refers to a person who suffers sever psychological stress, being underconditions of fear, and commits a crime involuntarily. It is different from the generalsense of crime. The freedom of will of a person who is under duress is influenced bythe stress when he conducts the act. Therefore we cannot make negative legalevaluation or criminal penalties on him simply. In general terms, the theory of duressreflects the conflict of law and humanity. And it is a manifestation of the lawsuccumbing to humanity. Duress is an independent general defense to crimes incommon law countries, distinguished from emergency hedge. In continental lawsystem, opinions differ. Some countries, such as Korea, takes duress for anindependent impediment of responsibility. Some other countries recognize duress as atype of emergency hedge, for instance Germany. And some countries see duress as asuper-law ground for the elimination of responsibility, for example Japan. There is noconcept of duress in Chinese criminal law, however, the theoretical study on duress isincreasing progressively. There are lots of papers about the nature of duress, therelationship between duress and emergency hedge or accomplice under duress. Thispaper will have a comparative study on the theory of duress of the two legal systemsfirstly, analyzing the status of duress in the constitution of crimes of different legalsystems. And on this basis, it will try to discuss the reference significance to Chinesecriminal law of theory of duress.This paper is divided into three parts aside from introduction:The first part presents the notional category of duress mainly. It includes conceptclearance of duress, nature of duress, theoretical basis of duress, and so on. The legalconcept of duress refers to a person who suffers sever psychological stress, in case ofnecessity, and infringes on other people in accordance with the requirement orintention of the intimidator.The second part focuses on the differences of the theory of duress of the twolegal systems. This part includes three sections. Firstly, it discusses the theory of duress in continental law system. The constitution of crimes in civil law countries is akind of three-level system of "deserved constitutional elements, illegality, liability".Although regulations differ, duress is recognized as impediment of responsibility inthis constitution of crimes. Secondly, it discusses the theory of duress in common lawsystem. Duress is kind of general defense to crimes, having independent legal statusin common law system. If the act of defendant met the statutory requirements, thedefendant would be acquitted. Thirdly, it focuses on the constitution of duress, and onthis basis, it evaluates and analyses the theory of duress of the two legal system.Because of the differences of the two constitutions of crimes, civil law countriesrecognize duress as impediment of responsibility, while duress is an independentgeneral defense to crimes. Whereas it is not a difficulty to find that the twoconstitutions of crimes have something in common, that is, they all inspect an actthrough three factors, including constitutional elements, illegality and liability.The third part compares duress to emergency hedge and accomplice under duressin Chinese criminal law. Duress is not an independent theoretical category in Chinesecriminal law, however it has cross and similar substance with emergency hedge andaccomplice under duress. Comparative study on duress and accomplice under duressis increasing progressively in Chinese criminal law scholars. Some scholars hold thataccomplice under duress confuses the theory of accomplice, while other scholarsobject. This part try to analyze the relationship between duress and emergency hedgeor accomplice under duress, and on this basis, figuring out the reference value offoreign theory of duress.