The Basis Of Excused Necessity

Excused necessity is one part of the necessity dualistic theory which includes justified necessity and excused necessity,it means the actions correspond with the general established condition of necessity,but the actor who did the act resulted a damage in comparison of legal interests,and provided as unlawful in criminal,then it relieved culpability to different extent for some reasons in the responsibility evaluation hierarchy,thereby it relieved criminal penalty.Unlawful in criminal is the precondition for excused necessity,and the actor may be criminally blamed for his act.As an excuse,it's a reverse subtraction to the existed culpability.It is distinguished from the justification.As an excuse,it has no place for excused necessity in the responsibility evaluation hierarchy that consist of Psychological fact(intentionally?negligently)and capacity for responsibility(age?mental disorder).The anticipated possibility theory had considered as the basis of excused necessity for a long time.But the goodwill theory was questioned in norming and nomocracy with the development of the criminal law theory.Excused necessity is an exception of responsibility evaluation.It needs a new basis,which conform to norming and nomocracy.The paper replace the problematic thinking method with system thinking method,and chose the start point of criminal law—the purpose of penalty as the logic framework of responsibility research.Through the discussion about the purpose of penalty,the conclusion for the basis of excused necessity has pointed out.It's the necessity of prevention.As the necessary condition of crime and penalty,culpability is quantitative and it corresponds to the balance of retribution.As the reverse evaluation of crime and penalty,excuse is adjustable and it corresponds to the fluctuant necessity of prevention.Through the quantitative culpability and adjustable excuse,it realize the quantified restrictions for the criminal liability that implement to the actor,and it provide the criterion for the following penalty.The model with dualistic responsibility evaluation—“culpability and excuse” corresponds to the logical relationship in purpose of penalty—“retribution and prevention”.In conclusion,as an excuse,the necessity of prevention is the normative and nomocracy basis of excused necessity.