Necessity In American Criminal Law And Its Enlightenment

Necessity is a generally recognized defense in various countries and regions.In American criminal law,as a defense and justification of crime,necessity is a common and important defense.In our country,the theory has a great controversy on the justification basis and limit standards of the necessity system.The generality and openness of the legislative provisions cause the judicial practice to deal with the actual problems too severely.For example,whether the self-induced danger should be denied,the stereotyped judgment of the unavoidable situation and the current judicial personnel’s solid understanding of the necessity concept lead to "severe caution" or "appropriate but not necessary" phenomenon is no longer rare.The system of necessity in American criminal law may inspire China to solve the above difficult problems.Therefore,this article will comprehensively examine the necessity in American criminal law from the aspects of concept,development history,constitutive requirements,characteristics,and then make a comparative study of the differences between Chinese necessity system and that of the United States,in order to explore newideas for the judicial dilemma of article 21 of the criminal law of China,with a view to developing and improving the rules of necessity in China.This article is divided into three parts.The first part summarizes the necessity system in the United States as a whole,establishes its origin and development,and clearly analyzes the justification basis of necessity defense in the United States criminal law from the perspective of legislation.The second part introduces the general situation of the legislation of necessity defense in American states and its establishment requirements,and explains its common establishment requirements.The third part,firstly,analyzes the characteristics of necessity defense in the United States,then summarizes the current situation of necessity defense system in China from three aspects of legislation,theory and judicature,and finally puts forward the idea of drawing lessons from necessity defense in the United States.