Comparative Study On Risk Aversion To Unnecessary Civil Liability And Criminal Liability

Behavior for purpose of protecting the legitimate rights and interests of, more than emergency needed to limit the implementation of the act, the victim caused by loss of the larger, known as excessive hedge. Difference in the general criminal acts, avoiding excessive although for legal purposes, but the subjective with sin, and in the objective results of damage, so by the need to be regulated by criminal law.Hedge over the establishment, with the objective of need satisfaction beyond the emergency necessary limit and caused the loss of the third party is not necessary. In the subjective aspect, behavior although for hedging purposes and make the risk aversion, but on the hedge had when the excess part of the damage results still have legal responsibility.Sin in the hedge had possible performance for such a state: negligent mentality is a common phenomenon, at the same time, overconfidence and indirect intention. Because excessive hedge is for the purpose of protect lawful rights and interests, therefore the subjective malignant is relatively small and excessive risk aversion when behavior of make is to consider to the objective situation at that time is very urgent, there are compelling circumstances, thus to hedge when made should reduce light punishment or be exempted from punishment provisions of China’s criminal law. Based on the principle of utilitarianism, emergency hedge is two interests in equity to have no other choice, at the expense of the legal interests of the small, and the protection of great interest. The emergency legal system is the punishment of crime or illegal behavior based on to justice.Based on the literature, understand the history and status quo of hedging behavior, so as to help the research. Through the comparison of different countries hedge over when the system of criminal and civil to hedge the system of civil and criminal responsibility,comparing the domestic and foreign hedge over when the system of civil and criminal liability for the same and differences. By relevant regulations about the hedge of civil law and criminal law system in contrast to Germany, Japan, the former Soviet Union and other countries, and the analysis of the common a hedge when the characteristics of civil and criminal responsibility, clear the hedge over when the content of civil and criminal liability can be used for reference and direction can be improved. The material is representative of the excessive risk aversion when case, the dimension from the perspective of theory,legislation and judicial practice, the of induction, analysis and comparison, summed upuniversal judgment, for solving similar to provide useful reference and through typical case study of mining real hedge when short board of civil law and criminal law theory, and puts forward the existing hedge when civil law and criminal law theory deepens suggestion.This article attempts to through the above research, looking for excessive risk aversion when the civil liability and the criminal liability in theory fit boundary points and, to explore both in legislation similar and discrimination, with a view to judicial operation will be distinguished and avoid to torture people or to people on behalf of the criminal, civil and criminal judicial chaos.