Crimen (Beograd) (Jan 2022)
Justification and limits of the necessity in criminal law
Abstract
The main conclusion of the paper is that the issue of the legitimacy of extreme necessity as a basis for excluding unlawfulnesss has not been satisfactorily resolved. When it comes to the solution in the criminal law of Serbia, there is a serious deficit in terms of the legitimacy of the extreme necessity as a basis for the exclusion of unlawfulness, especially in the case when the threatened good and the one sacrificed are of the same value. Therefore, the prevailing interest theory cannot justify the existing solution. On the other hand, requiring the condition that the person invoking the extreme necessity did not cause danger (which is the specificity of that solution in CC of Serbia), to some extent facilitates solving the complex problem of justifying extreme necessity as a basis for excluding unlawfulnesss unlawfulnesss. Discussing the issue of justification, one should start from two approaches that dominate the theory of criminal law: the principle of predominant interest and the principle of solidarity. Those two principles are not so different that they could not be considered as one principle. Moreover, the principle of solidarity if it is based on the principle of predominant interest provides additional justification and persuasiveness. However, solidarity in a situation of extreme necessity must be of a limited nature, and therefore one can speak of the principle of limited solidarity, which is based on the principle of predominant interest. First of all, solidarity must be limited by the value of goods, ie. it can be expected from individuals (or imposed on them through legal norms) only when one sacrifices one's own good of lesser value in order to save someone else's good of greater value (by no means of the same value). Nor can it be expected that someone will sacrifice his own life, even if it would remove the danger from the lives of several people. The scope of solidarity, no matter how it is understood, cannot reach those limits. Furthermore, it is also limited by the fact that solidarity cannot be expected by the one who is responsible for creating the danger, so in this respect the solution from the CC of Serbia is in accordance with the principle of limited solidarity. Solidarity can justify the sacrifice of the goods of others, which legally narrows the limits of their free action. Nevertheless, it still remains an open question whether solidarity means that others voluntarily accept to sacrifice their goods (of lesser value) in order to save one's good (voluntariness could be based not only on altruism, but also on the expectation that the same will be done for apply to them if they find themselves in a situation of danger), or is it a legally imposed solidarity. Problems related to the legitimacy of extreme necessity as a basis for excluding unlawfulness are also significant for the interpretation of certain conditions for its application. The absence of a convincing justification of extreme necessity as a basis for excluding illegality should result not only in prescribing strict conditions for its existence, but it should also be reflected in its application.
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