China's criminal law stipulates: "In order to protect the state, public interests, personal, property and other rights of oneself or others from ongoing dangers, those who have to take emergency actions to avoid risks and cause damage shall bear criminal responsibility, but the punishment shall be mitigated or exempted." The so-called "exceeding the necessary limit" is actually a judgment on the limit conditions of emergency hedging, which is extremely complicated in actual cases, related to whether emergency hedging is applicable or not, and related to the judgment of the parties' crime and non-crime, so it is extremely important. On this point, there are two views in the criminal law circle in China: the first view is the general theory mentioned above? -"greater than", that must be "the legitimate rights and interests protected must be greater than the damage caused by hedging. Another view is "equivalence theory", which holds that "when the value of preserving legal interests is the same as that of sacrificing legal interests, it should be regarded as emergency hedging".

Keywords: right to life, balance of interests, emergency avoidance

The criminal law takes a legally prescribed punishment for a crime as the basic principle, but the criminal law has no clear stipulation on the limit conditions of emergency avoidance, only the abstract stipulation of "exceeding the necessary limit". It is usually not difficult to compare two kinds of rights, for example, the right to life is higher than the right to health, the right to health is higher than the right to personal freedom, and the right to personal freedom is higher than the right to freedom. However, when protecting rights and interests and infringing rights and interests are both right to life? How to define the behavior of sacrificing others to save one's own life? Please look at the following case:

(1)A, B and C can communicate with the outside world when the foundation collapses and the hole is blocked. The results show that it takes 20 days to dig this hole, but the food carried by three people is only enough for five days. So, A suggested that three people draw lots to decide whether to win or lose, and the two winners killed the losers and kept their lives with their meat. B and c agreed. They asked the rescuers for advice on whether to put it into practice, but they didn't get an answer. Then the communication was interrupted. On the 20th day, when the excavation was successful, A was killed because the lottery failed, and B and C saved their lives with their meat.

In this case, under the circumstances at that time, according to the thinking choice of ordinary people, the following concentrated but different results can appear. One is to sacrifice oneself for others, that is, one of the three people sacrifices his own life to ensure that the other two get food and air to maintain their lives; Second, any two of the three conspired to kill the third person in order to get food and enough air. Third, the practice in this case is to decide the death of one person by drawing lots to maintain the lives of the other two. Fourth, none of them took any measures until the food was eaten up and the air was exhausted, and they died before the rescuers arrived; Fifth, if three people are evenly matched, they all want to fight each other to the death. In order to get more food and air, it is conceivable that the three will fight to the death. In the face of the above-mentioned possible concentration, the author thinks that the fourth and fifth situations are the most unsatisfactory and unwilling results, that is, no one can survive and there is no need to discuss them. In the second case, even the last survivor will be punished by law, because before that, the actor's behavior has violated the legal interests protected by criminal law, that is, he has already produced criminal consciousness and constituted the crime of intentional homicide, which is not what we advocate. In the first case, it is rare. It can also be said that the law does not require people to do moral behavior in an emergency-sacrifice and save others' lives. The law takes the human nature of ordinary people as the adjustment object under normal circumstances, rather than asking people to implement so-called heroism, not to mention that it is not people's obligation. To sum up, we can see that only the second case is acceptable to everyone and can maximize the guaranteed benefits. Moreover, this does not violate the existing criminal law provisions and the guiding ideology of legislation, and the specific analysis is as follows:

First of all, according to the old motto of criminal law, "There is no law in a state of emergency", its basic meaning is that in a state of emergency, some acts that cannot be prohibited by law under normal circumstances can be carried out to avoid the danger brought by a state of emergency. According to this theory, we can draw the following conditions for applying this ancient maxim of criminal law: (1) state of emergency. In other words, the prohibitive norms of criminal law are generally established with the thinking of ordinary people, but there are always special and general phenomena. Under special circumstances, it is difficult for people to abide by the universally established legal norms for survival and development. Therefore, in an emergency, people's special behavior can be legalized to protect the legitimate interests of the state, the collective and the individual. (2) Do it as a last resort. (it has been stated in its constitutive requirements) that is, requiring the actor to carry out the act must be the only way to protect the greatest legitimate interests in the absence of other ways. (three) the legitimate interests protected are greater than the legitimate interests damaged, and cannot be equal to or less than. Otherwise, the hedging behavior is meaningless. How to measure legal interests can be compared according to the principle of balance of legal interests mentioned above. But as far as this case is concerned, how to measure the legal interests of two lives is the focus of this paper. The author believes that since human life is the highest right of human beings, we can imagine how strong the desire for survival is when people are faced with danger or even life, which can also understand the behavior of pedestrians in the case to save their lives, that is, to sacrifice the lives of others to save their own lives. This kind of sacrifice cannot be said to be worthless or illegal. According to the values of the school of economic analysis, this is the only way to maximize benefits, because it is impossible for the actor to choose the fourth and fifth possible situations mentioned above. At the very least, the implementation of this behavior law should be encouraged, at the very least, it should not be denied.

Secondly, according to the legal maxim that "the promised behavior is not illegal", that is, when the actor commits an infringement, if the behavior and its result are exactly what the victim wants, then there is no infringement problem for the victim. In other words, the perpetrator's behavior has been agreed by the victim. According to foreign criminal law theory and legal act theory. The victim's promise is to give the perpetrator the right to commit some kind of infringement, which is also a legal act in a certain sense. Interest waiver theory. The legal order entrusts the maintenance of legal interests to the holders of legal interests, promising to show that their subjects have given up their own interests, so the interests protected by criminal law actually do not exist, so there is no infringement. To sum up, the author believes that since the victim (the interest subject) has given up the legal interests endowed by the law and promised that the actor can carry out certain infringement, which gives the actor certain rights, then the actor does not constitute a crime if he obtains the consent of the victim to carry out infringement, especially in an emergency where there is no applicable law.

Third, according to the theory of blocking illegal causes. Kameji Kimura of Japan pointed out: "The urgent avoidance of life and body is interpreted as the resistance of responsibility, because from the point of view of ordinary people, when the determination to take legal action cannot be expected, it should be understood as the resistance of responsibility due to the lack of expectation possibility." Moreover, because of life and life, body and body are not completely incomparable. Although life cannot be compared in quality (people's lives are of equal value), it can be compared in quantity (in other words, one person's life should be different from several people's lives). If one can save several people's lives at the expense of others, this should be allowed. Therefore, when we can't expect to take legal action, according to the purpose of legal protection-the pursuit of the greatest interests, we can use emergency avoidance to explain this problem.

To sum up, it is obvious that according to the theory of criminal law, human life cannot be taken as the object of emergency avoidance, but should be analyzed in detail. In case of emergency, it is the goal of our criminal law and law to carry out certain behavior to retain the greatest interests. According to the maxim that there is no law in a state of emergency, we can say that laws are formulated and promulgated in general with the thoughts of ordinary people and cannot be applied in an emergency, that is, because there is no other way to avoid danger, that is, the actor cannot be expected to take other methods to avoid danger (there is no possibility of expectation), so the responsibility of the actor should be excluded. Opponents may say that the right to life is the highest right of human beings, which determines how strong a person's desire for survival is when he is facing death, and he has to take that kind of behavior, not to mention that the behavior of the perpetrator is promised by the victim (I think it is not called the victim because the perpetrator did not deliberately frame it). According to "the promised behavior is not illegal", in fact, the victim gave up a right given to him by law, and the victim also gave up. It can be said that the above results are not what people want to happen, but they are also the best interests that can be protected in an emergency. From the perspective of economic law, the law pursues the greatest legitimate interests. Therefore, the author believes that in that case, emergency hedging should be applied. As for the responsibility of the actor, of course, he can't be investigated for criminal responsibility, and he can only make appropriate compensation in civil terms.

(2) A village female cadre went to the countryside to do mass work and met a gangster on her way back. At this time, it is near dusk and there is no one around. At the gangster's request, the female cadre gave the bicycle to the gangster, but at that time she demanded to return the pump. When the female cadre squatted down and saw the car driven by the gangster, she swung the pump and hit the gangster on the head. The gangster fainted to the ground, and the female cadres took the opportunity to escape. Finally, I saw a family and the place where female cadres lived in this deserted place. The old lady, the head of the household, expressed deep sympathy for the experience of the female cadres and arranged for her to sleep with them, while the female cadres slept outside the bed. After the gangster woke up, he went home and listened to his mother's description, only to know that the female cadre actually lived in his house. In order to prevent the woman from reporting the case, the gangster had the idea of killing, covered her mouth and told her about it. It happened that the conversation between mother and son was heard by the female cadres, so the female cadres and the gangster's sister exchanged places to sleep. Sure enough, at midnight, the gangster entered the room in the dark and aimed at the outside of the bed. It was the gangster's sister who was killed.

The court's audit opinion on this case is that the female cadre committed the crime of intentional homicide, which belongs to the crime of intentional homicide of excessive hedging, but the punishment for the female cadre was reduced. The basis is: "The right to life is the highest right, and it is not allowed to sacrifice another person's life to protect one's health, let alone to save one's own life."

According to Article 2 1 of the Criminal Law, emergency avoidance refers to an act that harms another minor's legal interests in order to protect the state, public interests, personal, property and other rights of himself or others from ongoing dangers. Because of the subjective intention of the actor, there is no intention to harm society; From a considerable aspect of the behavior, although it harms the legitimate interests of innocent third parties, it preserves greater interests as a whole and is beneficial to the whole society, so it does not constitute a crime.

The establishment of emergency hedging must meet the following conditions: (1) There are real dangers, and there are dangers that need to be avoided, making the causes and conditions comparable in recent years; (2) Danger is happening, which is the time condition for emergency avoidance; (3) Behavior is aimed at the legitimate rights and interests of the third party, and it is the objective condition of emergency hedging; (4) the behavior must be to protect the public interest and the legitimate rights and interests of oneself or others from danger, which is the subjective condition of emergency avoidance. (5) Emergency hedging damage must be the last resort to save or protect the larger legitimate rights and interests from damage; (6) The damage caused by the behavior to the legitimate rights and interests must be less than the damage to be avoided, which is the limit condition of emergency hedging. Only when these six close conditions and indispensable conditions are fully met can it be a proper and appropriate emergency hedging. In this case, when female cadres learned that the gangster was going to kill people, they had no choice but to sacrifice the gangster's sister to save their lives. It can be seen that female cadres have already met the first five conditions for emergency avoidance.