Research On Duress In Criminal Law

Duress has been clearly defined in the common law system as one of the defense reasons,some civil-law countries also have made rules for it.However in China,the duress is often confused with act of rescue and accomplice under duress,and has no independent status in criminal law.This is neither detrimental to the clarity and standardization of the application of the criminal law,nor conducive to the judgment of conviction and sentencing.Thus,based on the theory of Chinese Criminal Law and relevant research results,this thesis attempts to explain how to re-position and improve the status of duress in China's criminal law.Besides the epilogue,this dissertation has four parts:The first part is the introduction.In this part we will have an intuitive understanding about duress through inspections of the rules about duress in major countries of civil law system and common law system.Then define duress by analyzing its features.In the second part,we will analyze the legal nature of duress by stating its theoretical foundations,and the result is that the legal nature of duress includes two aspects —— the grounds for elimination of illegality and the grounds for elimination of liability.And this dissertation criticizes the view point of selecting one of the two aspects.The third part will discuss the constitutive requirements of duress,which includes five aspects: source of stress,degree of stress,object of stress,reality and urgency of stress and the reason to exclude duress was established.The fourth part will demonstrate the positioning and regulation of the duress in Chinese Criminal Law.First of all,this paper compares the differences between act of rescue and the duress,and the same comparison is made with accomplice under duress.We can draw the following conclusion: on the one hand,the duress cannot be included in act of rescue;on the other hand,accomplice under duress cannot become the basis for the establishment of the duress.Then,this paper suggests that the duress should be stipulated in the criminal law of our country independently.The specific method can be divided into three steps: first step,cancelling regulations about accomplice under duress;second step,stipulating the legal nature of duress includes two aspects;third step,if the duress cannot resist but crime,it should be legally prescribed circumstances of sentencing.Therefore,after article twenty-first of China's criminal law,one article is added as the twenty-second.Specific provisions are as follows: In order to protect oneself and close people's personal and property rights are not infringed,one has to submit to the order of intimidator to infringe the legal rights of others,the act is defined as the duress,if the damage does not exceed the limits of necessity,one is not guilty,or,should be based on the circumstances of the crime,to determine whether or not one is liable for criminal responsibility.If one should take criminal responsibility,one shall be given a lighter or mitigated punishment.