PROBLEMS OF DETERMINING THE LIMITS OF DAMAGE PERMITTED IN THE CASE OF EXTREME NECESSITY

Abstract

This article is devoted to the requirements for the damage that a person may cause for the actual existence of a state of extreme necessity, which is one of the circumstances excluding the criminality of the act. The relevance of the topic lies in the fact that the presence of gaps in the practice of applying extreme necessity leads to the restriction of citizens’ rights to use these norms. However, until now, the theoretical problems related to the extent of damage caused in a state of extreme necessity and its limits have not been studied by our scientists as a subject of scientific research. The article theoretically examines the views of a number of Western and CIS scientists, including B. Grant, J. Herring, G.M. Geffenbaum, V.N. Vinokurov, A.V. Nikulenko, and others, aimed at assessing damage in extreme necessity. To assess the damage, two different principles encountered in criminal law theory, namely the principles of necessity and proportionality, were analyzed. Also, referring to the experience of such advanced foreign countries as the USA, Great Britain, and Germany, the materials of judicial practice available in these countries were analyzed. Not only the theoretical views of domestic and foreign scientists, but also the results of a survey conducted among more than one hundred law enforcement officers were studied, and conclusions were drawn. At the same time, proposals and recommendations aimed at improving these norms in our criminal legislation were developed. Theoretical ideas aimed at improving the norms of ultimate necessity are based on the principles “Quad necessitas non habet legem” and “Necessitas vincit legem.”