【作者】 房磊；

【导师】 李韧夫；

【作者基本信息】 吉林大学 ， 刑法学， 2008， 硕士

【摘要】 英美刑法中的被迫行为是指行为人在他人或者环境胁迫下所实施的形似犯罪,但根据一定条件可以进行合法辩护的行为。它与我国的胁从犯理论是不同的,可以说胁从犯已将被迫行为排除在外。目前,被迫行为对于中国刑法来说还归在紧急避险之列,但是两者无论是在性质上还是在理论基础上都存在着差异。笔者认为,被迫行为与紧急避险应当各自成为刑法上独立的理论范畴。本文首先对被迫行为、紧急避险的理论基础、行为性质进行分析、比较,找出两者存在的差异,然后提出用以完善我国目前刑事立法现状之建议。被迫行为应作为区别于紧急避险之刑法上独立的范畴,其核心在于期待可能性理论而非法益衡量原则,应当依据期待可能性理论去构建被迫行为理论基础、定位被迫行为的法律性质、确定被迫行为成立的条件并决定对相关事务问题的处理态度。相应地,人为的强迫并不是紧急避险的危险来源,不能成立紧急避险。笔者认为,在现行刑法修改之前,最经济的做法是,我国可以以司法解释的方式将有关胁从犯的规定更加细致的加以规定:对于被胁迫参加犯罪的,应当按照他的犯罪情节减轻处罚或者免除处罚。行为人在死亡或重伤胁迫威胁之下,逼不得已实施的犯罪行为,不负刑事责任,但危害国家安全、公共安全,故意杀人罪除外。这样重度胁迫就有了免责的依据。更多还原

【Abstract】 Duress is an act that the actor implements under other’s duress, which is similar to crime but can be defended legally under some conditions. The definition of duress can only be seen in criminal laws of Anglo-American law system, which can be exempted by legal defence. On the contrary, there is no duress in criminal laws of continental law system and the relative contents can be seen in necessity. This paper mainly refers to six issues: firstly, the difference between duress and coerced offender behavior in China; secondly, the selection of the theoretical foundation of duress; thirdly, the character analysis and theoretical foundation of urgent act of rescue; fourthly, the similarities and differences of urgent act of rescue between Anglo-American law system countries and our country; fifthly, the relation between the duress and urgent act of rescue, which is mainly studied in this paper; sixthly, there are researches about relative content. In addition, scholars in Chinese criminal law have done researches on duress, but it is not deep, and there is broad theoretical space to research on the correlative issue. For example, the theory of expecting possibility is regarded as an important theoretical basis of duress, and scholars are still exploring how to locate it in Chinese criminal law system. On the basis of comprehensive researches on the theory of duress in criminal laws of Anglo-American law system in this paper, compared with the relative theories in criminal laws of continental law system, the author does some researched on the character of duress, puts forward viewpoints on the choice of theoretical basis of duress and the position of it in our criminal laws system, analyzes the relations between urgent act of rescue and duress, which are the differences and relations, as well as puts forward suggestion on the improvement of Chinese criminal legislation.This paper includes three parts: the first part is the theory foundation and character analysis of duress. In this part, first of all, the author elaborates the concept and requirement of duress in traditional criminal laws of Anglo-American law system. The author concludes these requirements into seven parts: the content of duress; the authenticity of duress; the urgency of duress; the object of duress; the effect of duress. Secondly, the author compares the duress with the provision of coerced offender in China as well as makes the basic analysis and comment. Eventually, the author analyses the theoretical foundation of duress, which is the theory of expecting possibility. The second part is the theory foundation and character analysis of urgent act of rescue. In this part, first of all, the author analyses the theory foundation of urgent act of rescue and the theory foundation is the principle of beneficial measure, then analyses the character of urgent act of rescue. Analyzing the elements, the author considers that urgent act of rescue in Chinese law system is different from the concept in Anglo-American law system and then analyzes the source of danger, the character of urgent act of rescue, the standard of judging the danger and the extent of the damage and so on. The third part is the analysis of the relationship between duress and urgent act of rescue. Firstly, the author consults the legislation in other countries, and then analyses the actuality of Chinese legislation. The author considers that the theory foundation of duress should be base on negation of the theory of expecting possibility. To amend the existing criminal law, the most economical method is that we may make some provisions in detail for the coerced offender by the way of judicature interpretation, which makes our criminal law more reasonable and similar cases to be balance between the crime and punishment so that it can reflect the principle of legality. The judicature interpretation about the 28th item in Chinese criminal law: To be coerced to participate in the crime, the punishment should be mitigated or exempted according to his crime. People who act under threat in death or serious bodily injury of coercion and are forced to implement the criminal action are not criminally responsible except that his action is dangerous for national security, public security and the crime of homicide. So there are principles for exempting responsibility about severe coercion. Secondly, the correlative issues between duress and urgent act of rescue are discussed: the first issue is the relation of duress and excess urgent act of rescue, that is to say, there is no direct deliberate idea in the subjective will for urgent act of rescue, but the coerced offender is deliberate in his subjective will, sometimes it is direct deliberate, there are significant differences. Objectively, The excess urgent act of rescue that exceeds the necessary limit is base on the damage, but the coerced offender is not base on results of damage. It is unreasonable to define urgent act of rescue and duress as cross-coincidence and add duress that accords with the principle of beneficial measure into urgent act of rescue. The second issue is the legal consequences of duress, as to the cases of urgent act of rescue, the offenders only have civil responsibility because of its validity. But to duress cases, enforcers must bear the legal responsibility because the aggrieved results of urgent act of rescue are the enforcer’s criminal motivation.Finally, the author draws a conclusion with the discussion: the theory foundation of duress should be base on negation of the theory of expecting probability. To amend the existing criminal law, the most economical method is that we may make some provisions in detail for the coerced offender by the way of judicature interpretation, which makes our criminal law more reasonable and similar cases to be balance between the crime and punishment so that it can reflect the principle of legality. The judicature interpretation about the 28th item in Chinese criminal law: To be coerced to participate in the crime, the punishment should be mitigated or exempted according to his crime. People who act under threat in death or serious bodily injury of coercion and are forced to implement the criminal action are not criminally responsible except that his action is dangerous for national security, public security and the crime of homicide. So there are principles for exempting responsibility about severe coercion.更多还原