| Emergency avoidance is a statutory reason for eliminating social harm as stipulated in the criminal law of our country.It is generally considered that the behavior is legal,and others are not allowed to defend against emergency avoidance.Although the criminal law stipulates that hedging actors can implement emergency hedging behaviors,the conflict of interests between the two sides of the hedging makes the phenomenon of refusal of emergency hedging in judicial practice,which greatly affects the legislative effect of the emergency hedging system.The root cause is the result of ignoring the legal rights of innocent third parties.There has also been controversy over whether the emergency avoidance behavior can be defended.Some scholars deny the defensive rights of innocent third parties by demonstrating the legitimacy of emergency avoidance: Utilitarian scholars believe that emergency avoidance is in line with the goal of maximizing the interests of society as a whole.Scholars of social joint obligation believe that innocent third parties are justified.Because of the obligation to endure and avoid risks based on maintaining a stable social relationship.Some scholars start with the elements of criminal law theory and believe that affirming the defense rights of innocent third parties will cause logical contradictions in criminal law theory.There are also a few scholars who believe that the civil law stipulates that the person who avoids the risk has civil liability,which means that his behavior is civil illegal,and then affirms that innocent third parties can defend themselves.This article believes that innocent third parties in emergency avoidance should enjoy the right of defense,but different from the right of legitimate defense,it is a limited right of defense.Its limitation is mainly reflected in the limitation conditions and specific behaviors of the exercise of the right of defense.This is also the focus of this article.From the perspective of innocent third parties,this article combs the existing theoretical viewpoints that deny the defense of innocent third parties,analyzes and discusses them one by one,and denies the theoretical viewpoints that hinder the defense of innocent third parties: affirm the defense of innocent third parties Rights are not necessarily inconsistent with the purpose of maximizing the value of interests pursued by utilitarianism,nor will it cause contradictions and confusions in criminal law theory and logic.On the contrary,simply denying innocent third-party defense rights will violate the basic criminal law principle of protection of legal interests.In this way,I put forward my own point of view and demonstrate that innocent third parties have the right to defend against emergency avoidance behavior,that is,emergency avoidance has forgiveness.Considering the essential difference between emergency avoidance and criminal violations,and the legislative purpose of criminal laws and regulations,the defense rights of innocent third parties should be weakened,that is,they are not legitimate defense rights.Immediately afterwards,a legal analysis of the defensive behaviors that innocent third parties may implement in the face of emergency avoidance behaviors is carried out,and through the analysis,the behaviors suitable for innocent third parties are summarized,such as negative refusal to avoid risks and positive behaviors.Hedging behavior again.Finally,it elaborates on the special factors that may affect the defense rights of innocent third parties,and then perfects the defense system of innocent third parties. |
