Study On Duress In Criminal Law

Generally speaking, it’s enough for construction of presumption if constitutive elements of crime are satisfied. But the criminal law also show understanding and sympathy for human frailty, so there are behaviors considered justified or excusable. Duress is a ground for exemption which can be used for legal defense, a definition used in criminal law of Anglo-American law system. In continental law system, there is no such definition, but relative contents get enough attention. The concept of duress in criminal law keeps an eye on special quality of certain person, shining brilliance of human nature, it also makes the criminal law fair to be kept and enforced.There is no relative theory in our criminal law related to duress, so in judicial practices its punishment basis are act of rescue and coerced accomplice. But problem lies in the nature of duress. It is self-contradictory that duress can not only be a type of act of rescue but also be coerced accomplice which relates to waived or limited responsibility. Regarding this problem, we survey legislative stipulation and theoretical views of Anglo-American law system and continental law system to unearth the legal basis of duress and clear its nature and establishing conditions. Learning different opinions in the world helps us develop better understanding to duress in our criminal theory system.This article includes five parts.The first part begins with the overview of duress. Learning the theory of duress at home and abroad, analyze the definition of duress and its general characteristics. The second part refers to extraterritorial application. We analyze and summarize latest views of Anglo-American law system and continental law system in order to promote judicial practice. The third part discusses the legal basis of duress. Firstly we introduce the theory of evaluation of legal interests, the theory of anticipated possibility, valueless of result and conduct and utilitarianism. Secondly, duress is case of preventive responsibility. The forth part studies on establishing conditions of duress. Under stress from others, the actor commits behavior of tort for his fear is so strong that we can’t expect him abide by law. The last part mainly discusses duress in criminal law of China. We firstly argue for related legal provisions and theories, point out the legislative defect of criminal theory and then offer improvement suggestion on this issue.