Comparative Study Of Duress In The Criminal Law

The duress is a unique type of act in criminal law,it is based on the coercion of human being,the actor of coercion commits a crime to prevent the realization of threat.It is precisely because of the involvement of the threat that,this kind of act is more or less different from other acts in the criminal law.There are many disputes in the two legal systems.In the criminal law of Anglo-American Law System,the duress constitutes the excuse of a reasonable defense or legal justification with certain conditions;in the criminal law of Continental Law System,the duress is mostly associated with the emergency action,and it is included in the research category of emergency action.There is no separate concept about the coercion act in the criminal law of China,the research mainly focuses on the emergency action and accomplice under duress in the criminal law.The coerced offender is a unique concept prescribed by the criminal law in China.This is different from the provisions of the two legal systems about the duress.There is a problem that the existence of coerced offender has significantly reduced the scope of coercion behavior applied as emergency action in the practice,which is harmful to the stability and credibility of the law.As the emergency action,the coercion behavior is the legal act without expecting possibility,and as the coerced offender,the coercion behavior is the joint criminal act which can be mitigated or exempted from punishment,it is easy to produce qualitative and sentencing controversy in the application.Starting from the concept of coercion behavior,the author tried to compare and analyze the legislation and theoretical achievements about the duress in the two legal systems,so as to improve the theory about coercion act,in order to clarify the location of coercion act in the criminal law,and put forward my own insights to perfect the relevant regulations of coercion act in the criminal law of China.This paper is divided into four parts to discuss the core problems such as the legal nature and the legal orientation of coercion act.In the first part,the basic concept and constitutive requirements are defined,in addition,this paper analyzed the legal basis that the coercion act is forgiven by criminal law specially.In the second part,the paper analyzed the provisions of the criminal law on the coercion act in the two legal systems,and drew out the differences of the coercion act in different legal systems.In the third part,this paper analyzed the theory difference of coercion act in the study of the criminal law in the two legal systems,made comments on thetheoretical controversy,and launched the qualitative standard of legal nature about the dualism coercion act.In the fourth part,the paper discussed the difference of performance about the coercion act in the coerced offender and emergency action,analyzed the different regulations between coerced offender and emergency.Through the analysis of the previous chapters,the paper reflected on the relevant provisions of coercion act in the criminal law in China,considered the existing problems and put forward corresponding suggestions.