Дуализм крайней необходимости: правовая природа

Kharkevich V.A.,
Student at the Russian State University of Justice

Scientific consultant Osadchaya O.N.,
Associate Professor at the Foreign Languages Department,
Russian State University of Justice, PhD in Philolog

Dualism of extreme necessity: legal nature

Executive summary.The article will acquaint the reader with the problems associated with the dual nature of extreme necessity. On the one hand, causing harm in a state of extreme necessity is not a crime, but on the other hand, it is, because there are limits that cannot be exceeded. The article discusses various options for the qualification of such acts. The purpose of the study is the following: figure out how to determine whether the limits of extreme necessity are exceeded or not. The article considers such a concept as an extreme necessity from two sides: from the point of view of a circumstance excluding the criminality of an act, and from the point of view of an act for which a person can be brought to criminal responsibility. The authors come to the conclusion that the dualism of extreme necessity exists, and limits of extreme necessity are influenced by a number of certain factors.

Keywords: extreme necessity, exceeding the limits, criminal law, act, crime.

The relevance of the work is to increase the level of legal culture of the population, as well as to show two sides of such a legal institution as an extreme necessity. For the first time, the mention of extreme necessity was formed in the Middle Ages with the appearance of such concepts as “ignorance of the law is no excuse”, “what is not permitted by the law makes necessity permissible”. A state of extreme necessity is characterized by a clash of two interests, when a person sacrifices a less valuable good to save a more valuable good [2]. G.F. Khametdinova writes that “extreme necessity is the elimination of a danger threatening an individual, their rights or the rights of other persons, as well as the interests of society or the state”. The social significance of the concept of “extreme necessity” is determined by the fact that harm is done in order to prevent even more harm [4].

According to article 39 of the Criminal Code of the Russian Federation, it is not a crime to harm interests protected by criminal law in a state of extreme necessity, that is, to eliminate a danger directly threatening the personality and rights of that person or other persons, the legally protected interests of society or the state, if this danger could not be eliminated by other means and at the same time was not allowed exceeding the limits of extreme necessity [3].

This article establishes another norm that shows the very duality of such a legal concept as “extreme necessity”, namely: exceeding the limits of extreme necessity is recognized as causing harm that clearly does not correspond to the nature and degree of the threatened danger and the circumstances in which the danger was eliminated when the specified interests were harmed equal or more significant than prevented. Such excess entails criminal liability only in cases of intentional harm.

The edicts of Ulpian pointed out that “when two unequal benefits collide, every claim is eliminated”, “no responsibility is incurred by the one who threw someone else’s goods into the sea to save his own”. Ancient Roman law allowed the destruction of a house in the event of a fire, with further suing the culprit, the unauthorized seizure of someone else’s thing during the danger threatening it. The principles of extreme necessity were applied both to forced transactions and to the impossibility of fulfilling obligations.

According to the main sources of canon law (the law emanating from the legislative authority of the Christian Church), such actions as the performance of divine services by a priest in the absence of proper conditions, the use of food prohibited by church rules (for example, the interruption of fasting), violation of an accepted vow were justified by extreme necessity. In order to protect life, it was lawful to sacrifice every other person’s good (life, bodily integrity, property). For this purpose, violation of any duty was allowed. The punishment for non-compliance with the prohibitions established by law was either eliminated or significantly mitigated. Punishment was also eliminated in cases where the motive for committing a criminal act was fear. Theft by necessity was punished only in cases where it was committed repeatedly [1].

The Anglo-American norm is presented as follows: “Necessity is a circumstance exempting from liability when it is proved that the imputed action was committed in order to avoid serious and irreparable harm, that there were no other suitable means to avoid it and that the measures taken were proportionate to this harm. Killing out of necessity is when the life of one person can be saved only by sacrificing the life of another. The question is not whether the life of a particular person should be sacrificed if necessary, but whether it is right to commit a crime in order to save one’s life. Canon law provides that a person whose life depends on immediate assistance may invoke such a need as a defense against prosecution in connection with the illegal use of such assistance. However, life can usually be taken away by invoking necessity only when it is necessary to save the life of the person using such a reference, or to save the lives of his close relatives” [6].

Protection by reference to extreme necessity is not the same as protection by reference to self-defense. The main difference between them is the underlying legal principle. Self-defense justifies opposition to harm, whereas the norm concerning extreme necessity justifies encroachment on the right.

Actions taken when absolutely necessary are justified by human weakness. If the pressure of necessity reaches extreme limits and there is no other way out of a difficult situation, except for violation of the law, then this circumstance creates a “merum ius natural” (“pure law of nature”), which, in turn, revives the original natural law.

The theory of S. Puffendorf is based on the instinct of self-preservation. The scientist expands the general idea of extreme necessity to the limits of the collision of human lives. He puts the idea of self-preservation to the fore because a person cannot free himself from this desire. S. Puffendorf makes a general conclusion that extreme necessity should be taken into account everywhere, where it is categorically not prohibited by law. According to the scientist, if absolutely necessary, the act is committed in an unusual legal form [5].

S. Puffendorf was the first to simulate the situation of human lives colliding, later called the “Puffendorf Rescue Board”. The scientist argued that if during a shipwreck someone while saving his life, grabs a board on which two cannot fit, and someone else, struggling with death, grabs the same board, which can ruin both, then in this case the first one will do quite right if he pushes the second off the board and thus saves himself. Such an action was declared by Puffendorf to be impregnable.

To sum up, a distinctive feature of the institution of extreme necessity is the clash of two law-enforcement interests, for the preservation of one of which the other is forced to be harmed. An action, if absolutely necessary, should be recognized as socially acceptable, but not socially useful.

The dualism of extreme necessity is manifested not only in the fact that it seems reasonable to conclude that it is possible to consider this circumstance excluding the criminality of an act as an independent institution of criminal law, but also in the indisputability of the fact that extreme necessity has all the signs of a circumstance excluding the criminality of an act, and is part of the institute of criminal law of the same name. Moreover, it is the primary basis for other circumstances that exclude the criminality of the act, as evidenced by the historical experience of the development of this institution.

Литература

1. Кодирова Р.Ш. Крайняя необходимость в уголовном праве: вопросы теории и практики. Челябинск: ЮУрГУ, ДО. 2019. 79 с.

2. Никуленко А.В. Обстоятельства, исключающие преступность деяния: концептуальные основы уголовно-правовой регламентации. Санкт-Петербург, 2019. 512 с.

3. Уголовный кодекс Российской Федерации 13.06.1996 № 63-ФЗ // Официальный интернет-портал правовой информации. URL: http://pravo.gov.ru (дата обращения: 05.02.2023).

4. Хаметдинова Г.Ф. Уголовно-правовая характеристика крайней необходимости. Тюмень, 2015. С. 152.

5. Минушкина Е. Ричард Паркер: смерть посреди моря. Журнал Дилетант. URL: https://diletant.media/articles/44163074 (дата обращения: 06.02.2023).

6. The United Nations War Crimes Commission // Law Reports of Trials of War Criminals. Vol. X, 1949. pp. 130-159.