Emergency avoidance must meet the following conditions:
(a) There must be a danger that threatens the legitimate interests.
The occurrence of danger that threatens legitimate interests is the premise of emergency avoidance. The so-called danger refers to an urgent factual state that is enough to cause damage to legitimate interests. Judging from judicial practice, there are four main sources of danger: (1) natural disasters. Such as earthquakes, sandstorms, landslides, landslides, tsunamis, fires, floods and so on. (2) the illegal and criminal acts or social harmful acts of the irresponsible person. Such as intentional arson, breaking water, destroying vehicles or traffic facilities, and various gross negligence accidents. (3) Physiological and pathological reasons. Such as hunger and disease. For example, in order to rescue the seriously injured, forcibly prevent passing vehicles from being sent to hospital. (4) Animal invasion. For example, wild animals chase, vicious dog bites, poisonous snake attacks and so on.
As a prerequisite for emergency hedging, the danger must exist objectively, not imagined or speculated by the hedgers. If there is no danger in fact, the hedger mistakenly thinks that there is danger, so the so-called emergency hedging is a hypothetical hedging. In this case, it should be solved according to the principle of dealing with factual errors. If the hedge should have foreseen the objective non-existence of the danger and failed to foresee it due to negligence, so as to implement the so-called emergency hedge, it should be treated as negligent crime; If hedging can't understand that there is no danger objectively at that time, it should be treated as an accident.
(2) Danger must be happening.
Danger is happening, which is the time condition for emergency avoidance. The purpose of establishing emergency avoidance system in criminal law is to minimize the social harm caused by the ongoing danger by hedging people's damage to smaller legitimate rights and interests. Therefore, the time condition of emergency hedging is that danger is happening. The so-called danger is happening, which means that it will cause damage immediately, or the danger that is causing damage has appeared and is not over yet. Emergency hedging can only be carried out under the time condition that the danger has appeared and has not yet ended, otherwise it is not an emergency hedging.
The end of danger means that the danger has passed and the damage to the legitimate rights and interests cannot be avoided or recovered, or the danger has disappeared and no longer exists due to the relief measures of the hedger or other subjective and objective reasons. If the danger has ended, there is no time condition for emergency hedging. At this time, the damage has been caused, and the so-called emergency hedging can no longer achieve the purpose of protecting legitimate rights and interests from losses.
If the risk taker carries out the so-called risk avoidance under the condition that the danger has not yet appeared or the danger has ended, the criminal law theoretically calls it untimely risk avoidance. Improper hedging does not belong to emergency hedging, and if the actor causes damage to the legitimate rights and interests, he shall be investigated for corresponding criminal responsibility or civil liability according to the specific circumstances of the case.
(3) It must be in order to protect the legitimate use from the ongoing danger.
In order to protect national interests, public interests, personal or other rights of oneself or others from ongoing dangers, it is a subjective condition for emergency avoidance. According to the subjective conditions of emergency hedging, it cannot be established if it is to protect some illegal interests. In addition, if the legitimate rights and interests are objectively protected from possible damage caused by certain dangers, the actor is not out of the intention of hedging, but out of the intention of infringement, which does not belong to emergency hedging.
(4) The object of hedging must be an innocent third party.
The object of hedging can only be an innocent third person, which is the objective condition of emergency hedging.
The essential feature of emergency hedging is to transfer risks at the expense of another smaller legal right in order to preserve a larger legal right. Therefore, the emergency hedging behavior is aimed at the legitimate rights and interests of the third party, not the source of danger. If the actor directly faces the danger by counterattack, instead of harming the legitimate rights and interests of the relevant minors, then the behavior is not an emergency hedging behavior, but an emergency hedging behavior or a legitimate defense behavior. For example, the actor eliminates the danger of being illegally infringed by damaging the personal rights or property rights of the illegal actor, and his behavior is not an emergency but a legitimate defense.
(5) Hedging can only be carried out when it is absolutely necessary.
Hedging behavior can only be implemented when necessary, which is an objective restriction condition for emergency hedging. Emergency avoidance is an expedient measure to protect larger legitimate rights and interests from danger at the expense of smaller legitimate rights and interests. Although on the whole, it is beneficial to the society because it preserves more legitimate rights and interests, on the part, it will inevitably harm the legitimate rights and interests of innocent third parties, so it still has a negative side.
Therefore, the criminal law stipulates particularly strict restrictions on emergency avoidance, that is, emergency avoidance can only be carried out under "last resort". The so-called "necessity" means that under the circumstances at that time, there is no other way to avoid the danger faced by the greater legitimate interests except by harming another legitimate interest. If there were other ways to avoid the damage caused by danger (including self-defense and direct elimination of danger, etc.). ), but the actor did not take it, but still evaded it by means of harming the legitimate rights and interests of the third party. Then his behavior cannot be regarded as emergency hedging, and if it constitutes a crime, criminal responsibility shall be investigated.
(six) the risk aversion behavior can not exceed the necessary limit and cause undue damage.
Not exceeding the necessary limit, causing undue damage, is the limit condition of emergency hedging. China's criminal law does not clearly stipulate the necessary limits of emergency avoidance. However, according to the nature of emergency hedging, this standard should be: the damage caused by hedging must be less than the damage avoided. In other words, the actor's damage to a legal right cannot be equal to or greater than the protected right.
Only by sacrificing smaller legitimate rights and interests to protect larger legitimate rights and interests can we establish emergency hedging, because only in this way can we benefit the whole society and meet the purpose of establishing emergency hedging system in criminal law. How to weigh the legitimate rights and interests is an extremely complicated problem. It is generally believed that personal rights are greater than property rights; Among personal rights, life is the highest right; The size of property rights can be measured by the value of property. However, some cases in practice are very complicated. The comparison of legal rights and interests needs comprehensive analysis and judgment.
For example, when a fire breaks out, firefighters must bravely put out the fire and face the danger of burns; When a passenger plane, ship, train or car breaks down and is in danger, the crew and drivers shall not take risks for their own safety; In the process of treating diseases, doctors and nurses should not take hedging actions because of the risk of bacterial infection, and so on. If these people with specific responsibilities leave their posts and evade their responsibilities in order to avoid the above-mentioned dangers related to their duties and business, their actions cannot be established as emergency hedging. If serious harmful consequences constitute a crime, criminal responsibility shall be investigated according to law.
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