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Ian Howard Dennis 《Criminal Law and Philosophy》2009,3(1):29-49
The article reviews recent developments in England in the law of necessity as a defence to crime and calls for its further
extension. It argues that the defence of necessity presents the criminal law with difficult questions of competing values
and the ordering of harms. English law has taken a nuanced position on the respective roles of the courts and the legislature
in the ordering of harms, although the development of the law has been pragmatic rather than coherently theorised. The law
has granted necessity some scope as an exculpatory principle in the law of general defences, but it has also respected the
primacy of the legislature as the legitimate arbiter of many of the competitions of value that necessity throws up. The recognition
of necessity has not been in the form of a single unified defence of that name. Rather it has taken the form of a number of
defences, based on a principle of necessity, but with different nomenclature and different rationales. This approach to necessity
is defended as right in terms of principle and policy. Any further development of necessity as a general defence should be
restricted to two contexts, namely those of emergencies, and of conflicts of duty, where a danger of death or serious injury
is present.
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《罗马规约》标志着个人刑事责任在国际法上得到了正式的认可,也是各国国内刑事法律和国际刑事法律相融合的一个表现。对《罗马规约》和《昆士兰刑法典》中主观过错因素、客观因素、抗辩理由等问题的异同分析,有助于正确把握国际刑法未来的发展方向和完善我国相应的法律制度。 相似文献
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