The Rechtsdogmatik Interpretation Of Duress

Duress as an excusatory defences,mainly exist in the relevant provisions and judgments of foreign criminal law.In common law countries,duress known as coercion,are an independent excuse defence.In civil law countries,takes duress for an independent impediment of responsibility,such as South Korea.Some other countries recognize duress as a type of emergency hedge,for instance Germany.And some countries see duress as a super-law ground for the elimination of responsibility,for example Japan.Although the two legal systems have different positions on the legal system of duress in the legislation,the overall view is that duress as an excusatory defences,the fundamental reason is that the law forgives human weakness,and the law regulates the average person and does not apply to heroism or cowards.Compared with the western countries,the criminal law theory on duress in China is not perfection.And Chinese theoretical circles and judicial practice are more inclined to duress is a singular judgment of illegal acts with social harmfulness,so that duress in Chinese as accomplice under duress to deal with,but do not know the legal nature of both have an essential difference.Therefore,this paper hopes to explain duress by means of the Rechtsdogmatik.“Rechtsdogmatik” is a discipline that studies the interpretation,systematism and development of legal provisions and various scientific theoretical viewpoints in the field of criminal law.If Chinese criminal law is to implementation of the principle of legality,it must be based on the correct interpretation of the provisions of the law,to better serve judicial logical reasoning.Therefore,this paper hopes to base on the legal provisions and theoretical studies of duress in the two legal systems,by explaining and analyzing the legal basis of duress,it provides reference for the theoretical development of duress in China.First of all,introduces the confusion of application of duress in Chinese criminal law and judicial practice through cases,which draw forth the theoretical dispute between duress and emergency hedge and accomplice under duress,and expounds the legal concept that duress is completely different from emergency hedge and accomplice under duress.This improper judicial treatment will result in the over-expansion of the scope ofapplication of duress,resulting in inaccurate conviction and inconsistent sentencing of the accused,and difficulties in obtaining effective and stable unified guidance for judicial practice.Secondly,this paper focuses on the legal nature and the application of criminal law of duress in two legal systems.The first thing you can see is that the controversy over the nature of duress focuses on whether it should be justificatory defences or excusatory defences.By combing the different theoretical basis of these two reasons,lays a foundation for the following analysis to obtain the true legal nature of duress.In addition,by comparing the extraterritorial application of the criminal law of duress,we can clarify the necessary conditions for duress to be used as criminal defence,and excluding the perpetrators from the risk of self-inflicted injury and serious crimes against national security and public safety.Finally,it is concluded that the legal nature of duress is an independent excusatory defences,and it should not be regarded as a justificatory defences.Duress are exempt from liability for lack of expectation and legal compromise on human vulnerability.And distinguish the legal limits between duress and emergency hedge and accomplice under duress,get some thoughts on how to apply the duress in China judicial practice.The content of coercion in duress should be limited to a serious threat to life or significant physical injury,in which case the doer should be directly exempted from criminal responsibility.But if the doer is subjected to mild threat other than life or significant physical injury,it is an illegal crime and should be dealt with in accordance with the legal provisions of the accomplice under duress.