导　　师： 李洁

学科专业： 030104

授予学位： 硕士

作　　者： ;

机构地区： 吉林大学

摘　　要： 紧急避险,又称紧急避难、紧急状态、救护急难的行为,是各国刑法中明文规定的不负刑事责任的正当化事由。我国刑法典第二十一条也规定了紧急避险制度。在刑法理论上,紧急避险是一种通过损害无辜第三人合法权益达到保护国家、公共、本人或者他人权益的行为,是一种正对正的行为。而紧急避险为什么是一种正当化的行为,为什么不是犯罪、不负刑事责任,各国刑法学者的观点各异。笔者首先介绍了紧急避险制度的概况,即概念和构成条件;再围绕紧急避险的正当化根据问题,列举了各国刑法学者对于此问题的主要观点,对这些观点加以评析,并提出了笔者的观点,即在我国目前通行的犯罪构成体系中,紧急避险是一种不具备犯罪构成、符合社会相当性且不得已的行为,因此是不负刑事责任的正当化事由;最后,分别就紧急避险的四个争议性问题进行分析,得出了结论:1.紧急避险的限度条件,一般情况下,保护的利益应当大于或者等于受损的利益,在极其特殊的情况下,也可以小于受损的利益,但是要严格限制这种情况;2.对不负刑事责任的人实施的回击行为应当认定为紧急避险;3.对紧急避险不得实行正当防卫;4.应当允许自招危险的紧急避险。 Necessity, also called“an emergency”,“emergency”or“emergency ambulance conduct”, generally refers to the last resort taken against one’s will, which may damage the other smaller legitimate interests, in order to prevent the national interest, the public interest, personal, property and other rights of principal and others from the occur-rent danger. Necessity is an act which damages the legitimate interests of others in order to preserve the interests of one’s own or others, the national or public interests. So why necessity is not considered as a crime in the criminal law, and the penalty is not given? Where is the legitimacy of emergency hedging? This paper makes a research on the issue and draws conclusions of the other related controversial problems on the basic of the very issue. The first part of the thesis briefly introduces the system of necessity. The system of necessity is derived from a maxim of criminal law, namely,“No Law When Emergency”of the medieval canon law. There is a necessity system in the ancient laws of China, and currently article 21 of the existing criminal law provides that China’s necessity system refers to an act a person is compelled to commit under emergency for the purposes of avoiding an immediate danger to the state’s or the public interest or to his own or another person’s personal or property right or any other rights, thus causing a harm to the other smaller legitimate interests. The author believes that“Theory of Seven-element Crime Constitution”offers a comprehensive, accurate and scientific exposition of the conditions to avoid danger under emergency as well as an analysis of the specific content of seven elements. The second part of the thesis is a research on the legitimacy of necessity, which can be divided into three small sections. The first small section introduces various theories regarding the legitimacy of necessity of today’s criminal law scholars both domestic and abroad, including Theory of Prevention from Punishment, Theory of Prevention from Responsibility, and Theory of Dichotomy in Continental Law System; Theory of Necessary Conduct, and Theory of Choosing One Between Two Evils in Anglo-American Law System; Theory of No Social Harmfulness in China’s criminal law circle. All the theories above illustrate the conditions of necessity based on different social backgrounds and different theories of crime constitution. In the second small section, the author carries out an assessment to the various theories above concerning the legitimacy of necessity. No doubt that there is some relatively reasonable part in the theories above which is worth learning by China’s criminal law theorists. However, various deficiencies still exist in these theories. Some can only be applied to a portion of necessity, while some can only be applied to their domestic criminal law. Scholars in civil law countries dispute in that necessity is made legalized by the legislators based on human considerations, and the lack of anticipated possibility of hedging behavior, or because the legislators believe necessity is beneficial for the entire legal order after weighing the legal interest. The author believes that it has a certain rationality to consider the legitimacy of necessity from the aspect that the hedging behavior lacks of anticipated possibility, but only from this aspect, it can not be explained why the law allows the principal to commit such act in order to protect national interest, social interest, and other people’s legitimate benefits. It is also partially reasonable to consider the legitimacy of necessity from the aspect of weighing the legal interest. But only this can not explain why the occurrence of an offense can also be negated when the interests damaged is equal to the interests protected. In fact, whether it is just from the aspect that the hedging behavior lacks of anticipated possibility, or from the aspect of weighing the legal interest, it can not offer entirely reasonable legitimate evidences of necessity. Therefore, the German criminal law adopts the Theory of Dichotomy, the shortcoming of which lies in that the legitimate evidences of necessity have been artificially split into two types. Since in practice, whether it is Prevention from Punishment or Prevention from Responsibility, necessity, after all, is a justified reason. It should be unified, and not be treated differently. More importantly, the theory lays its foundation on“conformance, illegality and responsibility of constitutive elements”, which characterizes the system of crime constitution theory in Continental Law System, while our country adopts four-element coupling style system of crime constitution theory. Thus, this theory has no place in our country. The two theories in Anglo-American Law System, even though based on two-tier structure of crimes constitution in Anglo-American Law System, namely,“substantive constitutive elements and procedural constitutive elements”, have no differences essentially with Theory of Prevention from Punishment and Theory of Prevention from Responsibility in Continental Law System. Theory of No Social Harmfulness in China is partially reasonable, but it does not give an adequate description, what’s more, it is self-contradictory. In the third small section, the author shows his point of view on legitimate evidences. Everything exists with premises, and so does the legitimate evidences of necessity. Through the analysis, the author believes that the premises of the discussion are as follows: 1.“Legitimate”means“legal and reasonable”, in line with the requirements of social policies and behavior criterion; 2. Legitimacy of necessity can be applied to the field of criminal law as well as the whole society’s legal order. Thus, it is unreasonable to attempt to negate its legitimacy in the unified legal order by the advantages of necessity’s different legal effect on criminal law and civil law; 3. The legitimacy of necessity should be discussed based on the four-element coupling style theory of crime constitution currently prevailing in our country, not based on the criminal constitute theory in other legal systems. It is even worse just to talk about the legitimate evidences of necessity without theoretical basis. Only with the specific premises above can we draw the conclusions on the legitimacy of necessity system. Subsequently, the author analyzes the four- element coupling style theory of crime constitution. Crime constitution is the full conditions of criminal composition and the legal standards of crime. The conduct in line with the crime constitution composes a crime. As far as the legal criteria of criminal cognizance is concerned, no other identification criteria exist apart from crime constitution, and any other conditions should not be attached outside crime constitution. Moreover, crime constitution is the legal sign of criminal social harmfulness. Crime constitution is provided by criminal law, general principles and specifics of which provide crime constitution of an act. The general principles stipulate the elements all crimes must possess, while specifics provide the specific elements that a particular crime should specially possess. Criminal law providing crime constitution intends to prohibit behaviors which are in line with crime constitution. Therefore, once an act conforms to crime constitution, it means that such act is characterized by formal illegality. Because of this, only those factors, which play a decisive role in showing social harmfulness and its degree, can be provided as constitutive elements by criminal law; for the same reason, if an act is in line with crime constitution, it shows that the behavior is characterized by criminal social harmfulness, namely substantive illegality. Lack of a certain element means lack of the whole crime constitution, so it is non-criminal act. Necessity protects the national interest, the public interest, the legitimate rights and interests of the principal or other people through the damage to the smaller or equal benefits of the third person who is innocent. However, from the perspective of the whole social order, even though the individual interests have been damaged, the social interests as a whole have not been reduced substantively. And the object of the crime represents the overall interests of society; if the act does not damage the overall interests of society, there is no crime against the object, which negates the crime. To make necessity legitimate, it is not enough just not to against the overall interests of society. The means adopted also need to be consistent with the requirements of social correspondence, and to make the benefits damaged by the conduct at the smallest limits as possible as the principal can. Possessing these two points above, the principal must also have no anticipated possibility, specifically, which means that when the national interest, the public interest, the rights and interests of oneself or other people are at risk, the principal takes measures for a last resort which damage the interests of the third innocent parties, without any other better methods to protect the rights and interests above. Therefore, not to infringe the object of crime, conforming to social correspondence and a last resort constitute the legitimate evidences of necessity. The third part of this thesis analyzes four controversial problems about necessity, namely, the limits of necessity; qualitative issues to fight back against the destroying action of irresponsibility person; self-defense for necessity; necessity for danger made by somebody. The thesis ends with conclusions. In China’s Criminal Law, necessity does not meet the four-element coupling style crime constitution of China’s criminal law common theory, and thus there is no social harmfulness. Besides, necessity is a last resort in line with social correspondence. Both of them are the legitimate evidences of China’s necessity system, based on which, the author analyzes four controversial issues closely related to necessity and draws relatively reasonable conclusions as follows: 1. The limits of necessity should be set as follows: generally the interests protected should be greater than or equal to impaired benefits, while in extremely exceptional circumstances, the interests protected can also be less than the damaged ones, which should be strictly limited; 2. The implementation of the back behavior protecting the irresponsibility person should be identified as necessity; 3. Self-defense can not be implemented under necessity; 4. Necessity of danger made by somebody should be permitted.

关 键 词： 紧急避险 正当性根据 犯罪构成 限度 无责任能力人 正当防卫 自招危险

分 类 号： [D914]

领　　域： [政治法律] [政治法律]