The Relationship Between The Duress And The Urgent Act Of Rescue With The Study

Duress is an act that the actor implements under other's duress, which is similar to crime but can be defended legally under some conditions. The definition of duress can only be seen in criminal laws of Anglo-American law system, which can be exempted by legal defence. On the contrary, there is no duress in criminal laws of continental law system and the relative contents can be seen in necessity. This paper mainly refers to six issues: firstly, the difference between duress and coerced offender behavior in China; secondly, the selection of the theoretical foundation of duress; thirdly, the character analysis and theoretical foundation of urgent act of rescue; fourthly, the similarities and differences of urgent act of rescue between Anglo-American law system countries and our country; fifthly, the relation between the duress and urgent act of rescue, which is mainly studied in this paper; sixthly, there are researches about relative content. In addition, scholars in Chinese criminal law have done researches on duress, but it is not deep, and there is broad theoretical space to research on the correlative issue. For example, the theory of expecting possibility is regarded as an important theoretical basis of duress, and scholars are still exploring how to locate it in Chinese criminal law system. On the basis of comprehensive researches on the theory of duress in criminal laws of Anglo-American law system in this paper, compared with the relative theories in criminal laws of continental law system, the author does some researched on the character of duress, puts forward viewpoints on the choice of theoretical basis of duress and the position of it in our criminal laws system, analyzes the relations between urgent act of rescue and duress, which are the differences and relations, as well as puts forward suggestion on the improvement of Chinese criminal legislation.This paper includes three parts: the first part is the theory foundation and character analysis of duress. In this part, first of all, the author elaborates the concept and requirement of duress in traditional criminal laws of Anglo-American law system. The author concludes these requirements into seven parts: the content of duress; the authenticity of duress; the urgency of duress; the object of duress; the effect of duress. Secondly, the author compares the duress with the provision of coerced offender in China as well as makes the basic analysis and comment. Eventually, the author analyses the theoretical foundation of duress, which is the theory of expecting possibility. The second part is the theory foundation and character analysis of urgent act of rescue. In this part, first of all, the author analyses the theory foundation of urgent act of rescue and the theory foundation is the principle of beneficial measure, then analyses the character of urgent act of rescue. Analyzing the elements, the author considers that urgent act of rescue in Chinese law system is different from the concept in Anglo-American law system and then analyzes the source of danger, the character of urgent act of rescue, the standard of judging the danger and the extent of the damage and so on. The third part is the analysis of the relationship between duress and urgent act of rescue. Firstly, the author consults the legislation in other countries, and then analyses the actuality of Chinese legislation. The author considers that the theory foundation of duress should be base on negation of the theory of expecting possibility. To amend the existing criminal law, the most economical method is that we may make some provisions in detail for the coerced offender by the way of judicature interpretation, which makes our criminal law more reasonable and similar cases to be balance between the crime and punishment so that it can reflect the principle of legality. The judicature interpretation about the 28th item in Chinese criminal law: To be coerced to participate in the crime, the punishment should be mitigated or exempted according to his crime. People who act under threat in death or serious bodily injury of coercion and are forced to implement the criminal action are not criminally responsible except that his action is dangerous for national security, public security and the crime of homicide. So there are principles for exempting responsibility about severe coercion. Secondly, the correlative issues between duress and urgent act of rescue are discussed: the first issue is the relation of duress and excess urgent act of rescue, that is to say, there is no direct deliberate idea in the subjective will for urgent act of rescue, but the coerced offender is deliberate in his subjective will, sometimes it is direct deliberate, there are significant differences. Objectively, The excess urgent act of rescue that exceeds the necessary limit is base on the damage, but the coerced offender is not base on results of damage. It is unreasonable to define urgent act of rescue and duress as cross-coincidence and add duress that accords with the principle of beneficial measure into urgent act of rescue. The second issue is the legal consequences of duress, as to the cases of urgent act of rescue, the offenders only have civil responsibility because of its validity. But to duress cases, enforcers must bear the legal responsibility because the aggrieved results of urgent act of rescue are the enforcer's criminal motivation.Finally, the author draws a conclusion with the discussion: the theory foundation of duress should be base on negation of the theory of expecting probability. To amend the existing criminal law, the most economical method is that we may make some provisions in detail for the coerced offender by the way of judicature interpretation, which makes our criminal law more reasonable and similar cases to be balance between the crime and punishment so that it can reflect the principle of legality. The judicature interpretation about the 28th item in Chinese criminal law: To be coerced to participate in the crime, the punishment should be mitigated or exempted according to his crime. People who act under threat in death or serious bodily injury of coercion and are forced to implement the criminal action are not criminally responsible except that his action is dangerous for national security, public security and the crime of homicide. So there are principles for exempting responsibility about severe coercion.