Special Circumstances Of The Subject Of Necessity

As an ancient legal institution, necessity, with its concept and content furtherdeepening and developing, has expanded its scope of protection to rights and interests frommere interests. It has also become applicable to conditions where rights and interestsprotected equals those damaged. However, the subject applied to necessity has rarely beendiscussed. Persons with particular duties and obligations are exempt from the applicationof necessity under the Chinese Criminal Law. First, the narrow definition of duties andobligations fails to meet the requirement of generality. Second, such persons bear a relativeduty of taking risks instead of absolute assumption of risks. Therefore, it’s also necessaryto apply necessity to such persons in particular circumstances. The application ofself-induced dangers in necessity is not specified in laws, but due to the probable damageto the rights and interests of innocent third persons, restrictions shall be put in applying thisspecial type of danger. We should analyze the relationship between self-induced dangersand necessity from an overall perspective of action based on recognition of all thedanger-avoiding actions. In characterizing the counterattack of innocent third persons, weshould take into account the overall interests of society as well as those of the innocentthird persons based on the principle that the lawful rights and interests of citizens isinviolable.