Study On The System Position And Structure Of Necessity

The legal nature of necessity can be regarded as the system positioning of necessity.In the theory of criminal law,there are two opposite theories:Preclude illegality and Preclude liability.This is of no practical significance to the “one-sided”system positioning of necessity.From this point of view,”dichotomy” is more reasonable.The theory of necessity should make a comprehensive analysis of the urgency of danger,the proportion of conflicts of interest and the freedom of the will of the people.At the same time,according to the preservation object,different types of necessity should be identified separately.In principle,necessity has the function of preclude illegality.In exceptional cases,it has the function of preclude liability.The scope of risk sources for necessity should be strictly limited.Generally acceptable risks,such as unemployment,hunger and disease,are not allowed in principle.Only in exceptional cases,if there is a reasonable basis,can consider whether establish the preclude liability of the necessity.When the perpetrator creates danger,if there is no reason to ban necessity,the risk avoidance behavior and the previous dangerous behavior shall be evaluated respectively,and the crime liability should be investigated according to the perpetrator’s deliberate intention or negligence.In the determine of necessity,the measure of legal interest is worth affirming,but it should add the hidden value of the injured party and then predict the interests of both parties.Therefore,when the interests preserved by the necessity are greater than the damaged interests,it is not necessarily in line with the illegal necessity.Only when the value gap is particularly significant,can the avoidance be prevented and excluded The illegality.The evaluation of illegality is great significance to people’s action guidance function,so we should take it seriously when we measure the legal interest.The measurement of legal interest should be judged in advance at the time of danger and before the beginning of the action of avoiding danger.In principle,thenecessity of the right to life can not prevent the illegality.Because the illegality has the function of guiding people’s actions,the only exception is that the perpetrator does not have "the possibility of expectation" or "the necessity of punishment".In addition,in the judgment of excluding liability for emergency avoidance,we should also combine the freedom of will of the actor to make a comprehensive analysis.