The Advantageous Choice Of The Path To Decriminalization Of Coerced Behavior

The theory of coerced behavior has been developed in foreign criminal law theories to be basically mature,it can be a defense to criminal charges basically become a unified consensus of the theoretical and practical circles.Although there is no lack of theoretical research on coerced behavior in China,and there have been more influential coerced cases in judicial practice,the theory of coerced behavior has not formed a unified definitive and consensus,especially the definition of coerced behavior,the nature of coerced behavior,whether the coerced person can be incriminated,the reasons for incrimination and the path to incrimination,etc.are very controversial.The theory guides practice,and the lack of unity in theory has led to confusion in judicial practice.For cases of coercion that occur in practice in the form and essence of the very same,the judicial results are very different,which seriously undermines judicial stability and justice and affects judicial credibility.This paper argues that when a coerced person suffers a serious and imminent threat of death or serious bodily injury,his freedom of will decision is severely impeded and he can not control his own will to freely choose whether to commit a lawful act.Criminal law has a humanistic concern,the setting of norms can not be contrary to human nature,otherwise it will not achieve the expected consequences of the provisions set,affecting the effect of legal realization.In the case of severe coercion,the perpetrator is faced with two choices: one is to comply with the will of the coercer so as to avoid the imminent significant damage to his own interests and assume the contingent penalties imposed by law later;the other is to confront the will of the coercer and choose to protect the interests of others to the detriment of his own interests.In such a case,a person with the firm mental attitude of the general public will basically choose to defend his or her own interests,and the law cannot expect the perpetrator to choose to act against his or her own interests in such a case.If the penalty is imposed on the coerced person,it will not achieve substantial justice and will not achieve the purpose of general and special prevention of punishment,and will not guarantee that the perpetrator will choose to commit a lawful act in a situation where he or she again lacks the possibility of expectation.Therefore,based on the basic point that coerced behavior should be incriminated,this paper searches for possible paths of incrimination of coerced behavior in the existing criminal law context.Through the search of theoretical and judicial cases,it is found that the existing paths of criminalization of coerced behavior are: the coerced behavior does not satisfy the constituent elements of the act of commission;the coerced behavior meets the proviso;the coerced behavior can be applied to emergency avoidance of criminalization and the coerced behavior can be applied to the super-legal deterrence of liability-the perpetrator does not have the possibility of expectation of criminalization.After research and discussion,this paper concludes that under the existing criminal law system,the natural choice of the path to criminalization of coerced behavior should be that the perpetrator should not be expected to commit lawful acts under severe duress.In the case of the act of implementation,the coerced person,although losing the freedom of meaningful decision,still has the freedom of meaningful activity and does not lose the intentionality of the act.For the proviso,the coerced person commits a serious violent criminal act,and cannot meet the requirements of the proviso that the circumstances are significantly minor and not harmful.And for the more similar to the coerced behavior of emergency avoidance,coerced behavior and emergency avoidance against the crime of the theoretical basis and criminal justice there is a great difference,the two can not be confused.It is theoretically and practically reasonable to take the possibility of no expectation as the path to exoneration for coerced behavior.The theory of possibility of expectation is consistent with the theoretical basis of the coerced behavior should be exonerated,which is theoretically coherent;and the application of the theory of possibility of expectation to exonerate can better play the role of education,evaluation and guidance of the verdict compared with other ways,and produce a better social impact.