Research On Necessity In Criminal Law

"There is no law in an emergency." In an emergency,it is possible to implement certain behaviors that are prohibited by law under normal circumstances to avoid the dangers caused by such an emergency.Suchannecessity concept and the formation of the system have a long history of development,but also condense the hardships of people's pursuit of justice and tolerance of human weakness.Necessity is one of the legal justifications of the same name as legitimate defense,but compared with legitimate defenses against illegal infringement,emergency hedging is “just positive”between the legitimate interests of the two conflicts.Making a choice will inevitably cause damage.Therefore,we should pay more attention to the research on necessity,and should be more cautious in the identification and application of necessity.This paper empirically analyzes the judgment documents of necessity and finds out the problems in the application of necessity in criminal law,and then analyzes and solves the above problems on the basis of the basic principles of criminal law.The first chapter specifically studies the application status of the necessity and raises the existing problems.Through the search for " necessity" keywords in the criminal case judgment documents publicized by the court,the criminal cases related to necessity have shown a clear upward trend since 2014,reaching a peak in 2016,and then showing a stable situation.Combined with the specific judgment content of the court,this paper puts forward the problems of the application of necessity.First,the restrictions on the necessity and the determination of the limit conditions are toostrict.Second,it is applicable to the improper avoidance of dangerous behaviors.The second chapter mainly analyzes the theoretical basis of the necessity,including the justification and the nature.The justification of necessity should be based on the legal interest balance,and the viewpoint of legal interest balance can reasonably explain that the emergency risk avoidance does not result in a legal benefit violation that is worthy of punishment.It is not socially harmful in nature,and therefore does not establish a crime.The nature of the behavior of necessity mainly has disputes that prevent illegal and obstructive responsibilities.This paper advocates emergency avoidance to eliminate illegality.In the necessity,the perpetrator's subjective purpose is justified.Objective behavior does not have social harmfulness and criminal illegality,and does not conform to crime.Elements.Therefore,the necessity essentially excludes illegality,and failure to assume responsibility is the inevitable result of eliminating illegality.The third chapter mainly discusses the limits of the necessity.The limit conditions in the criminal law are clearly stipulated as “not causing undue damage beyond the necessary limits”.The meaning of “exceeding the necessary limits” and “causing undue harm” are not exactly the same.Whether the risk aversion exceeds the necessary limit is the measure of the damage caused by the risk aversion and the damage avoided;whether the risk avoidance causes undue damage emphasizes whether the damage causes damage that should not and should not be.Whether the behavior causes undue damage requires judging whether the behavior meets the two conditions of the uniqueness of the necessity and the frugality of the choice of measures.The measurement of damage benefits and protection interests is the core issue of the necessity.Benefits measurement needs to be measured from the same nature,different nature of interests,and the interests of the risk-averse person.The fourth chapter is mainly about the application of necessity in dangerous situations.In judicial practice,it often occurs in traffic accident cases.The danger of self-invitation means that the actor has caused danger for his own reasons.Compared with the occurrence of general danger,on the one hand,in the case that the urgent danger already exists,the right to deny the self-protection of the actor is somewhatdeviated from the emergency risk-avoiding.The original intention of the establishment of the system;on the other hand,the self-inflicted dangerous people have an unshirkable responsibility for the occurrence of danger,which has led to the damage of other legitimate rights and interests.This paper argues that there is room for necessity in the case of self-investment,and the perpetrator has the right to necessity.In the specific judgment,the actor must bear the endurance obligation corresponding to the degree of adverse interest caused by his own danger.Only when it exceeds the level that it should endure,can the necessity be established.If the act is established in an emergency,it has a justification for criminal law and does not need to bear criminal responsibility.However,according to the provisions of the Civil Law,the actor must bear the corresponding civil liability.