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Necessity Defense in Criminal Law

Author(s): Ljubiša Zdravković, Srđan Aleksić
Subject(s): Law, Constitution, Jurisprudence, Criminal Law, Comparative Law
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Necessity defense; Criminal law; Criminal code; Overstepping; Comparative law;
Summary/Abstract: Necessity defense is one of the oldest institutes of criminal law. It arose very early in connection with the need to justify the immediate protection and defense of one's legal property against simultaneous, undisguised illegal attack. Necessity defense is a legal institute exists in a vast number of criminal legal systems today. At any rate, it presents a general basis for excluding the existence of a criminal offense, provided that the conditions strictly prescribed y law are met in any specific case. An act committed in necessity is not a criminal act. Defense is deemed necessary when the defendant uses force to repel a simultaneous illegal attack on his property or the property of another. In order to assess whether necessity defense or excessive necessity defense took place, it is vital to determine and evaluate not only the proportionality between intensity of the attack and the intensity of the defense but also the means used for attack and defense, the strength of the attacker in relation to the attacker, the real possibilities of the attacked to repel the attack, and other circumstances specific to that case. The defendant who exceeds the limits of necessity defense due to intense irritation or panic caused by the attack, he can be released from the punishment.

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