A Study On The Problem Of Emergency Hedging In Coercive Behavior

There has been dispute on the nature of duress for a long time, and the duress theory shows great differences in Anglo-America law system and Continental law system. In Continental Law System the duress is similar to the necessity, it is hard to distinguish them in theory but to judge and apply on the basis of real situation. While in order to apply clearly and conveniently in the criminal case, the necessity and the duress are still divided in Germany, Japan and other countries. In Anglo-America law system the duress is treated as an independent plea instance that prevent from illegality and mainly means the criminal action are took under force, the difference between the duress and the necessity is the threat that they are facing, which is regarded as the key criteria in British and some other Common Law system countries.The determination on the nature of duress in our country differs from the Common Law system countries and Continental law countries. In our country the duress is often treated as coerced offender in judicial process for its social harmfulness. While,the end is completely different between the duress and coerced offender. In other words, coerced offender excludes the act under coercive and incriminate the crime offender who is forced, whose function runs counter to the act under coercive.Therefore, to confirm the nature of the duress has a fair-reaching impact on the judicial practice.The reason why the duress cannot be identified as coerced offender is that the duress shares the same crime obstructed function. Besides, the distinction between the duress and the necessity is slight and it is hard to be distinguished in judicial practice.In consideration of foundational judicial power and law officer’s professional quality,the distinction work will tend to be harder and affect the safeguard of perpetrator’s right. It is worth to explore how to solve the judicial practical problems without academic instruction and written law guide. Law is not fixed but active and need to be explained by judiciary.In the view of our present written criminal law, the duress sometimes is identified according to the rule of necessity instead of the coerced offender. Whether incriminate the duress or not subjects to the specific situation instead of providing great academic instructions in Continental law countries, which provides valuable reference for our country. It is hardly in the spirit of substantive law and is not meet the requirement of the modestly restraining spirit of criminal law to identify all the duress as coercedoffender.Firstly, this thesis conducts theoretical analysis on the duress and the necessity,including the research status of the Continental law system and the Anglo-America law system, and also attempts to take a thorough exploration from the headstream of those theories. Secondly, based on the detailed analysis of the basis and properties about the theories, this thesis tries to make clear the relationship and differences among them. At last, this thesis would adopt the present articles of law and the theoretical basis to throw out a relatively perfect proposal, aiming to promote the legal system development in China.