Prekoračenje granica nužne odbrane - uporednopravna analiza sa osvrtom na rješenja iz sudske prakse
Exceeding the Limits of Necessary Defense - Comparative Analysis With Reference to Case Law

Author(s): Sunčica Hajdarović
Subject(s): Law, Constitution, Jurisprudence, Court case
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Necessary defense; Exceeding the limits of necessary defense; Affective states;
Summary/Abstract: It is an indisputable fact that the necessary defense, as the defense which is necessary for the perpetrator to ward imminent unlawful attack on himself or another, excludes the existence of a criminal offense through the exclusion unlawfulness. These are situations in which a permissive norm nullifies the effect of a prohibitive norm, with the existence of one condition - the attacker acts with a defensive will. However, there are situations where these limits are exceeded, so a crime is committed. In this paper author will explain the ratio legis of exceeding the limits of self-defense due to asthenic affects as a reason for milder punishment or release from punishment, and will discuss possible unresolved issues regarding practical application of this institute, with special emphasis on solutions in comparative criminal law, trough a review of case law. The paper will also provide proposals de lege ferenda on possible forms of exceeding the limits of self-defense, all in an effort to harmonize the criminal legislation of Bosnia and Herzegovina with the European criminal legislation.

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