Research On The Duress In The Criminal Law

In the past ten years,it has gradually aroused the concern of the Chinese criminal law scholars,especially due to the context of multiple malignant cases,such as " the murder case of a certain woman under duress in Chongqing " in 2005,"the murder case of prostitutes under duress in Kunming" in 2007,"the murder case of a prosecutor in Pingdingshan" in 2008,"the murder case of certain women in Luoyang " in 2009,and "the murder case of a businessman in Yibin " in 2015.If the criminal illegal crime is based on people's own free will,the theory of criminal law usually consider they shall bear criminal responsibility.However,in real life people's will has always been interferenced by outside factors,these outside factors will affect the conviction of crime and punishment.Under this type of disturbance,the actor has involuntarily carried out some behaviors that cause damage to the society.How to deal with this kind of behavior correctly and reasonably will be the research direction of this paper.In foreign theories of criminal law,"Duress" is considered to be "the most difficult to define and legitimation of solution resistance".In our country criminal law theory,the research on duress is still not paid enough attention and is even in a blank state for a long time.Many scholars believe that the provisions of article 28 of the criminal law in our country is a specific description and regulation of duress.When it comes to the meaning and conditions of duress,relevant study is not much enough.Due to the above reasons,it is objectively conducive to China's criminal law.Injudicial practice,some of the perpetrators who are coerced to participate in the crime are treated as threatened offenders,and they are alleviated or exempted from punishment.In some cases,acts or force under duress are not criminalized.In other cases,the duress is taken as a circumstance for commutation of punishment.This has led to the fact that in the judicial practice,the same situation has resulted in significantly different refereeing results,and the judicial chaos of different judgments in the same case has damaged the authority and impartiality of the judiciary,and has highlighted China's acts of coercion.The lack of criminal law theory and criminal legislation on duress is obvious,and needs further study.In addition to the introduction,this article is divided into the following three chapters:The first chapter is a comprehensive discussion of duress itself.Specifically,it is mainly carried out from four aspects: the definition of duress,the description of the characteristics,the classification and the theoretical basis for the penalty reduction.The chapter begins with the semantic analysis of "duress" from ancient times to the present,and then discusses what is the duress in the sense of criminal law.Then this chapter discusses about the damage to society,subjective unwillings and the urgency of duress,etc.Thirdly,the duress is further analyzed according to the different dimensions of the degree of duress,the certain objects,and the legal consequences.Finally,connected with the humanity care and the spirit of restraint in criminal law,this chapter explains why the penalty for duress should be reduced.The second chapter is about the detailed analysis of the duress in China's criminal law by linking with the legislative evolution of duress in China,the systemic status of the duress in our country's joint crimes and the inadequacy of the legislation.In this chapter,the inadequacy of the criminal regulation of the duress is the core part.Based on the current inadequacy,there are four major problems,especially the content of the degree of duress is not differentiated.Anasyling those problems prepares the foundation for the reconstruction of the criminal law in China.The third chapter is the key chapter of this paper.This part refers to the legislative overview of the duress in foreign countries,and combines the currentdomestic relevant arguments to propose a reconstruction idea for the reconstruction of the duress in China's criminal law norms.While analyzing the coercive behaviors of the civil law system and the common law system,this chapter also pays attention to the judicial practice in China,so as to choose the most suitable reconstruction path.