| In the face of the conflict of the right to life,the risk avoidance behavior with life as the object objectively exists in our country,and most scholars also hold a positive attitude towards the legitimacy of the behavior,but there are few cases of innocence in judicial practice.Most of them are investigated for criminal responsibility for the crime of intentional homicide,which is only considered at the discretion of the degree of responsibility.As a legitimate act in criminal law,the reason why emergency avoidance exists independently in the criminal theory system has its preset logical premise,that is,in the absence of public power,the law grants individuals the right and limit to carry out private relief and objectively cause harmful results.In other words,if the public power is not absent,the public power will take the same means to deal with them.Their behavior is of equal value,so it gives the legitimacy of private relief.At this time,private relief has the nature of public power.However,the dispute on the theory of emergency avoidance with the right to life as the object is stuck.All parties have not separated the inertia of public rights and private rights based on the logical starting point of emergency avoidance,so that the emergency avoidance with the right to life as the object has their own words at the level of value judgment.Therefore,the premise of solving the applicable dilemma of emergency avoidance with the right to life as the object must return to the logical starting point of emergency avoidance,including two aspects: one is to solve the problem of value judgment of emergency avoidance with the right to life as the object;The second is to solve the problem of the applicable methods of life emergency avoidance in justice,that is,to adopt the two-level judgment mode of judging the facts before judging the value.From the standpoint of "dichotomy",this paper refines the risk avoidance behavior with the right to life as the object,and holds that the aggressive risk avoidance behavior of "self-interest" has social harmfulness,criminal illegality and punishability.Because in the emergency of the absence of public power,in the face of the conflict of the right to life,the law should not and cannot allow social members to damage others’ lives in order to preserve their personal lives,which is also the common requirement of social members,but they can be given a lighter punishment;"Altruistic" aggressive right to life emergency avoidance behavior does not have social harm.Because if there is no absence of public power,public power will also take the same behavior to avoid risks.In the absence of public power,social members take the risk avoidance behavior,which is of the same nature as the behavior of public power.At that time,it has the nature of quasi authorization,but it is illegal;The defensive emergency avoidance behavior of "self-interest" right to life meets the conditions for the establishment of the crime,but hindering responsibility is not a substantive crime;"Altruistic" defensive emergency avoidance behavior and "altruistic" aggressive emergency avoidance behavior are homogeneous in nature,and in contrast,based on the social commitment of the infringed as a source of danger,the damage behavior is more legitimate.Based on the above value judgment,this paper puts forward the normative establishment conditions of emergency hedging with the right to life as the object,which can be used as a reference for practice. |
