Conditions for necessity

According to the provisions of Criminal Law, when there is a great danger threatening national or public interests, or the personal, property and other rights of his own or others, if there is no other way, foreigners can take some emergency measures to avoid such danger, thus causing harm, and it constitutes a necessity provided by the Criminal Law of China, and he shall not be held for criminal liability.

Necessity must meet the following conditions:

First, the person who exercises necessity should have the intention to avoid danger, and that is to say that the purpose for the person to exercise necessity is to protect state or public interests, or the personal, property and other rights of his own or others from the ongoing danger. If the measures are taken to protect illegal interests, it does not constitute a necessity.

Second, the danger exists objectively. This danger may come from actions of people, natural disasters, or from attacks from animal, etc., but in any situations the danger must be an objective and real existence. On the contrary, if the person mistakenly assumes that there is a danger, and thus has taken some measures to avoid it, and caused harm, it does not constitute necessity. In this case, the person may commit a crime of negligence, or may only need to bear some civil compensation or other consequences.

Third, the danger is very urgent. This means that some kind of danger is ongoing and is not over, and it directly threatens the interests of the country or public interests or other legitimate rights. Necessity cannot be exercised for the danger that has not yet come or has already pasted, and otherwise the person may be punished by criminal penalties.

Fourth, there is no other way to effectively avoid the danger. Because necessity is to protect another kind of legitimate rights and interests by causing damage to a kind of legitimate rights and interests, so only is it the only way to avoid danger can it be allowed. On the contrary, if the person has any other way to effectively avoid the danger and avoid damage, necessity is not allowed.

Fifth, it must meet the limits of necessity. This means that necessity cannot exceed the limits of necessity, and should not cause unnecessary damage. Necessity is to protect another kind of rights and interests by causing harm to a kind of rights and interests, and the two kinds of rights and interests are both protected by law, and therefore, only when the harm caused by necessity is less than the damage it avoided, necessity will be beneficial to the society and can be supported by law.

In addition, in the course of exercising necessity, the provisions on avoiding the danger of one’s own do not apply to the people who have special responsibility in his post or profession. This is because in the event of urgent danger, the people with special responsibility should take an active role in rescue and relief activities to fulfill their obligations, so they are not allowed to cite necessity as an excuse for escaping from their duties.