On The Boundary Between Emergency Avoidance And Accomplice Under Duress

Emergency hedging and threatening perpetrators are both legal situations in our criminal law that can reduce or reduce criminal liability.Although the two have similarities,there are more obvious differences.The characterization of the intimidated behavior between the two is an issue that is not clearly defined in China's criminal law for the time being.The qualitative analysis of coerced behavior,that is,the clarification of the boundary between emergency hedging and complicity.One of the keys to the boundary between emergency hedging and complicity lies in the "last resort" and "necessary limit" of emergency hedging.The connotation of "last resort" should be interpreted as having no other method objectively;the criterion of "last resort" should be a combination of subjective and objective methods.For the "necessary limit",we must judge both the size of the legal benefit and the meaning of the necessary limit itself.For the legal benefit of life in the "necessary limit",we should not deny the practice of taking other people's lives as the object of emergency avoidance.The key to the boundary between emergency risk avoidance and threatened offenders lies in the objective and subjective aspects of the identification of threatened offenders.Objectively,we should mainly consider the way and degree of coercion,reality and urgency,while subjectively we should mainly emphasize the cognitive and will factors of the coerced person.Specifically,it is objective to consider the impact of the degree of coercion on the person being coerced,and whether the coercion is realistic and urgent;subjectively,it is necessary to examine whether the actor recognizes the possible consequences of his behavior and whether he wants it or let it go This consequence occurs.The definition of coerced behavior in civil law system and common law system has certain reference significance.The civil law system mainly relies on the theory of expected possibility to incorporate coerced behavior into emergency hedging.Due to the similarity of the legal system,the practical experience of the theory ofanticipation of possibility is helpful to our country.In common law systems,emergency hedging is used as a justification for defense,and coercion is used as a forgivable defense.Although the legal systems are quite different,the legal basis,legality,and forgivable defences of defenses can also be used to inspire our country's problems.The differences between emergency hedging and threatening offenders are the differences in theoretical basis,sources of danger,subjective viciousness,freedom of will,limits of conduct,measurement of legal benefits,and subject identity.Among them,the measurement of legal interest and freedom of will are the key to distinguish emergency avoidance and threatening offenders.Emergency hedging requires legal interest measurement,which can only be changed from small to large,while threatened offenders do not have such a requirement.The will of the emergency hedging actor is completely free,and the freedom of the coerced person who threatens the offender is restricted to a certain extent.Identification of coerced behaviors should be differentiated according to the degree of coercion.Regardless of the degree of coercion,acts that damage smaller legal interests in order to protect larger legal interests are an emergency hedge;under moderate and mild coercion,activities that damage relatively large legal interests actually damage greater legal interests,It is a guilty convict;under a large degree of coercion,an act that damages equal or greater legal interests in order to protect a certain legal interest is an illegal and irresponsible act,and can be handled in the same way as emergency avoidance.