Legal Encyclopedia. The letter H

necessary defense

- Criminal defenses; subjective natural right of every person to be recognized and enforceable by law.

Right on N. O. are equally all persons, regardless of their professional or other special training or official position. This right belongs to the person, regardless of the way to avoid a socially dangerous assault or seek the assistance of other persons or authorities.

N. O. - non-criminal harm to an attacker in the protection of the individual and the rights of defendant or other persons legally protected interests of society or the state of the socially dangerous encroachment, if the invasion was fraught with violence dangerous for the life of the defendant or other persons, either directly threat of such violence.

Theory of Criminal Law stipulates three conditions for the legality of N. A .:

1) public danger of abuse, ie it should be directed to the violation of the rights and interests of the defender, other persons, society and the state. Public danger is recognized not only criminal behavior infringing, but actions that are not crimes due to insanity person or failure to reach their age of criminal responsibility;

2) causing harm to the attacker, not to third parties;

3) the reality of abuse, ie its existence in reality;

4) Violence must be in cash, ie assault to initiate or threat thereof is obvious. The actual end of a socially dangerous encroachment - the final moment of self-defense.

In criminal law, distinguish between the necessary and the imaginary defense arises when a person mistakenly assumes that infringement, is not actually taking place. Actions defending the imaginary defense can be caused by various factors:

1) when the accident situation gave reason to believe that the actual infringement committed, and the person was not aware and could not understand the fallacy of their assumptions (an honest mistake). Actions person p assmatrivayutsya how committed within the necessary defense. If a person has exceeded the limits of self-defense, it is responsible for exceeding the limits of necessary defense;

2) when misleading on anything not based, ie, the person should have and had the opportunity to recognize imaginary attacks. In this case, liability is incurred for negligent infliction of harm.

Protection against attacks that do not involve violence dangerous for life or defending another person or an immediate threat of such violence is legitimate, if it were not exceeded the limits of necessary defense, ie, deliberate actions, is clearly not appropriate to the nature and danger of assault.

Exceeding the limits N. O. - a deliberate action, is clearly not consistent with the nature and degree of public danger of assault.

Are not exceeded the limits of H. O. actions defending a person if that person due to encroachment of surprise could not objectively assess the extent and nature of the danger of attack.