Necessary defense and extreme necessity: concept, conditions of legality, meaning

Hello, friends! I haven’t written notes on interesting topics for a long time, and I finally came across this question. In legal practice, there are criminal acts that do not provide for criminal or other punishment. We are talking about necessary self-defense and extreme necessity.

Such circumstances are not even regarded as a criminal act, but are considered forced actions. Moreover, in criminal law there are special rules regulating such cases. I will tell you about which articles are responsible for such actions and what types of punishments may be provided. How are these concepts different and similar?

General concepts

The extreme need for administrative law (according to the text - the Code of Administrative Offenses) is discussed in Article 2.7 , which provides circumstances when, causing harm to state-protected interests, a person’s actions are not qualified as an offense.
The legislator considered such actions to be behavior committed in special conditions - in a state of extreme necessity .

So, extreme necessity is the circumstances in which a person, who finds himself in danger, when the need for defense arises, takes actions to prevent it, as a result of which they are harmed by other legitimate interests.

In this case, he can be legally recognized as a person who committed such actions when absolutely necessary.

Basic characteristics of necessary defense and emergency

Necessary defense is inflicting harm on a criminal to protect himself, other citizens, and the interests of the public and country. It must be proportionate to the encroachment, otherwise it may be considered illegal. Let's say that if the robber is unarmed and does not threaten the life of the victim, then killing the intruder will be considered an excess of necessary defense. However, if the criminal wanted to shoot at the victim, but he got ahead and fired the bullet first, then the actions are considered legal.

The encroachment must be:

1. Dangerous. That is, it can really cause damage to a citizen, his loved ones or the state. If the attacker only verbally threatens, then the presence of a real danger is in doubt.
2. Cash. Defense is allowed if an attack is already taking place. Let's say the attacker takes out a gun and is about to shoot.
3. Effective. The danger must be real, and not just in the head of the defender. If harm was caused due to a far-fetched threat, then the act will be classified as causing damage through negligence.

Third parties should not be harmed by the victim's actions. The defense itself must be timely, used directly at the moment of danger, and it will be necessary to comply with acceptable standards of defense commensurate with the threat.

Extreme necessity is a special situation in which it is necessary to prevent a real threat to cause harm to property or a citizen. The source of danger can be not only people, but also natural disasters, animals, diseases, breakdowns of mechanisms and other objects. The danger must be real, not imaginary. Measures must be taken on time and not exceed permissible limits. It is important that a violation be committed if there is no other way to eliminate the threat.

CHAPTER III SIMILARITIES AND DIFFERENCES between ESSENTIAL DEFENSE AND EMERGENCY

Necessary defense and extreme necessity as circumstances excluding criminality of acts have much in common.

The main similarity is that the criminal law officially allows to cause any harm to someone’s interests or person in order to preserve the interests or health (life) of another person. But at the same time, the law specifies specific conditions under which harm can be caused to something or someone. Thus, even taking the life of another person will not constitute a crime if all the conditions for the legality of defense or action in extreme necessity have been met.

The criminal law allows all citizens to use the right to necessary defense and emergency, but it does not oblige the use of this right and does not entail any criminal liability for refusal to use this right.

At the same time, some people have a legal obligation to exercise this right in appropriate situations. This responsibility lies with fire department workers, military personnel, police officers, other departments of internal affairs bodies, etc. The professional activities of such workers are associated with situations in which they are obliged to protect someone else’s interests, as well as their own.

If we consider the similarity of necessary defense and extreme necessity from the characteristics that are inherent in them, then in both cases the common feature is the presence of encroachment or danger. This sign means that the presence of danger or encroachment means that the danger must arise, exist and will not end. Both completed and only possible future encroachment cannot cause a state of necessary defense; the same rule applies to extreme necessity.

Another common feature is the reality of the encroachment or danger. In other words, the threat of harm must exist not only in the imagination of the person defending himself or acting in a state of emergency, but also in objective reality.

As stated in Articles 37 and 39 of the Criminal Code of the Russian Federation, actions in a state of necessary defense or extreme necessity can be carried out not only in one’s own interests, but also in the interests of another person, as well as the legally protected interests of society and the state.

Protection, both in case of necessary defense and in cases of extreme necessity, must coincide in time with a socially dangerous attack or with an impending danger. The limits of the exercise of the right to protection are determined in time by the initial and final moments of the encroachment itself, and, if absolutely necessary, by the moment of the beginning of the danger and the moment of its end. Premature or late defense has nothing to do with the circumstances under consideration that exclude the criminality of the act.

One important similarity is the concept of exceeding the limits of necessary defense and extreme necessity. Protection is legitimate only when its limits have not been exceeded in the process of its implementation. However, the legislator makes an amendment that only intentional actions committed in the process of such protection are exceeding the limits of protection.

But even if the limits of protection from danger (attack) are exceeded, this is still considered a mitigating circumstance, which is expressly stated in paragraph “g” of Part 1 of Art. 61 of the Criminal Code of the Russian Federation.

Let's move on to consider the differences between necessary defense and extreme necessity.

The source of danger in the necessary defense is socially dangerous human actions. If absolutely necessary, sources can be very diverse[18]:

The actions of the forces of nature, various elements (fire, water, etc.), that is, objective processes occurring in nature, for example, earthquakes, floods, hurricanes, mountain avalanches, snowfalls, etc., which create a danger to life and health people and their property.

Animal attack.

Malfunction of various mechanisms (for example, vehicles).

Physiological, pathological processes (disease, state of hunger, etc.), if, for example, a person lost in the taiga, fleeing hunger, kills a wild animal or bird, which is generally prohibited to hunt[19].

With the necessary defense, harm is caused only to the attacker and only to the person. In case of extreme necessity, as a rule, to a person not associated with creating a danger to another person, his rights, state and public interests.

Necessary defense is not criminal if the harm caused is less than, equal to, or even slightly greater than what was prevented. In this case, the person defending does not need to worry about the harm caused to the attacker, but we must not forget about exceeding the limits of necessary defense.

If absolutely necessary, the harm caused should always be less than the harm prevented. When acting in conditions of extreme necessity, a person must be aware that the harm he causes to other interests protected by law must be less than the harm prevented.

Necessary defense is also allowed when the defender had the opportunity to protect state, public and personal interests without resorting to causing harm to the attacker. In Part 3 of Art. 37 of the Criminal Code of the Russian Federation states that the right to necessary defense belongs to a person, regardless of the possibility of avoiding a socially dangerous attack or turning to other persons or authorities for help.

If absolutely necessary, harm must be caused to third parties. These include citizens and legal entities, as well as the state and public organizations that are not legal entities, not involved in creating a situation of extreme necessity, whose interests, however, are harmed when saving another legally protected interest[20].

A state of extreme necessity is excluded if elimination of the danger was possible without causing harm to third parties. This is directly indicated in Part 1 of Art. 39 of the Criminal Code of the Russian Federation “... the danger could not be eliminated by other means...”. That is, a state of extreme necessity will only be legitimate when causing harm to some legally protected interests in the name of saving other (more significant) interests will be a truly extreme case in the current situation.

If necessary defense helps fight crime and cultivate intolerance in society towards criminal elements, as well as the desire to protect one’s own and others’ interests, including the interests of the state, then extreme necessity forces a person to cause harm due to the action of any natural forces, mechanisms, and also the physical and mental state of a person.

Acting in a state of extreme necessity, a person does not have the right to save his life at the cost of someone else’s life. However, when using the right to necessary defense, the defender may cause the death of the attacker in order to save his life or the life of another person, if this did not exceed the limits of necessary defense.

Another important difference is the issue of compensation for harm caused. Damage caused in a state of necessary defense is not subject to compensation, but harm caused in a state of extreme necessity is subject to compensation, unless the court decides otherwise.

The special part of the Criminal Code of the Russian Federation does not contain special rules providing for liability for exceeding the limits of extreme necessity, similar to those provided for in Art. 108, 114 of the Criminal Code of the Russian Federation. This means that liability for exceeding the limits of extreme necessity will be under the relevant articles of the Special Part, but with reference to paragraph “g” of Art. 61 of the Criminal Code of the Russian Federation (Circumstances mitigating punishment).

CONCLUSION

Extreme necessity and necessary defense are “forced defense” in cases where a person is forced to choose between two evils: to commit a crime or allow a greater evil.

Necessary defense as a circumstance excluding the criminality of an act arose in connection with the need to protect the legitimate interests of the individual. Necessary defense can be considered as a legitimate defense against attacks by causing harm to the attacker.

The institution of extreme necessity in Russian criminal law is one of the means of protecting the interests of the state, property, rights and interests of individual citizens. It helps prevent larger damages from occurring at the risk of smaller losses. The right of extreme necessity to protect other persons, as well as their rights and interests, contributes to the education of citizens of our society in the struggle for the protection of law and order.

Extreme necessity has a number of similarities with necessary defense. They are brought together by social significance, the goals of the corresponding actions and the reasons for these actions. However, they differ significantly from each other.

They differ: a) by the source of danger (the only basis for necessary defense is a socially dangerous attack; extreme necessity can be caused by a number of circumstances); b) for harm caused (in case of necessary defense - to the attacker, extreme necessity - to a third party); c) according to the severity of the harm caused (if necessary defense it can be less, equal or greater, if absolutely necessary - only less); d) according to the conditions of elimination (if defense is necessary, they do not matter, if absolutely necessary, it cannot be eliminated without causing harm); e) according to legal consequences (necessary defense excludes liability; if absolutely necessary, the issue of compensation for damage is resolved through civil proceedings).

LIST OF REFERENCES USED

1. The Constitution of the Russian Federation (adopted by popular vote on December 12, 1993) // Rossiyskaya Gazeta. 25 Dec 1993

2. Criminal Code of the Russian Federation dated 06/13/1996 N 63-FZ // Collection of legislation of the Russian Federation. - 06/17/1996. - No. 25. Art. 2954.

3. Esakov G.A., Rarog A.I., Chuchaev A.I. Handbook for criminal judges / resp. ed. A.I. Rarog. M.: Welby, Prospect. - 2007. - 547 p.

4. Kochoi S.M. Criminal law. General and Special parts: short course. M.: CONTRACT, Wolters Kluwer, - 2010.- 127 p.

5. Handbook for criminal judges / ed. A.I. Raroga. M.: Welby, Prospect. - 2007. - 356 p.

6. Naumov A.V. practice of applying the Criminal Code of the Russian Federation: commentary on judicial practice and doctrinal interpretation (article-by-article). Wolters Kluwer. - 2005. 410 p.

7. Sidorov B.V. Criminal legal guarantees of lawful socially beneficial behavior. Kazan, 1992. – 294 p.

8. Criminal law of the Russian Federation. General part: Textbook / Yu.V. Gracheva, L.D. Ermakova, G.A. Esakov et al.; edited by L.V. Inogamova-Khegai, A.I. Raroga, A.I. Chuchaeva. 2nd ed., revised. and additional M.: CONTRACT, INFRA-M - 2008.-560 p.

9. Criminal law of Russia. General part: textbook / D.I. Aminov, L.I. Belyaeva, V.B. Borovikov and others; edited by V.P. Revina. 2nd ed., rev. and additional M.: Justitsinform, - 2009. –414 p.

10. Kolosovsky V.V. Necessary defense: problems of criminal legal qualifications//Law and Politics. – 2008. – No. 3. –98 s.

11. Commentary on the Criminal Code of the Russian Federation (article-by-article) / A.A. Ashin, A.P. Voitovich, B.V. Volzhenkin and others; edited by A.I. Chuchaeva. M.: CONTRACT, INFRA-M, - 2009. - 458 p.

12. Collection of decisions of the Presidium and rulings of the Judicial Collegium for Criminal Cases of the Supreme Court of the RSFSR. M. - 1981. - 240 p.

13. On the application by courts of legislation ensuring the right to necessary defense against socially dangerous attacks. Resolution of the Plenum of the Supreme Court of the USSR dated August 16, 1984 No. 14 // Bulletin of the Supreme Court of the USSR. - No. 5. - 1984.

14. Determination of the Supreme Court of the Russian Federation in the case of K. // Bulletin. Supreme Court of the Russian Federation. 2002.- No. 6.

15. Ruling of the Supreme Court of the Russian Federation of May 22, 2003 N 3-DP03-6 // Bulletin of the Supreme Court of the Russian Federation. – 2004. – No. 2.

16. Judicial practice in criminal cases. M., - 2005. - P. 52.

Appendix A

Similarities between necessary defense and extreme necessity

Appendix B

Differences between necessary defense and extreme necessity

[1] Criminal Code of the Russian Federation dated 06/13/1996 N 63-FZ // Collection of legislation of the Russian Federation. - 06/17/1996.- No. 25. Art. 2954.

[2] On the application by courts of legislation ensuring the right to necessary defense against socially dangerous attacks. Resolution of the Plenum of the Supreme Court of the USSR dated August 16, 1984 No. 14 // Bulletin of the Supreme Court of the USSR. - No. 5. - 1984.

[3] Judicial practice in criminal cases. M., - 2005. - P. 52.

[4] On the application by courts of legislation ensuring the right to necessary defense against socially dangerous attacks. Resolution of the Plenum of the Supreme Court of the USSR dated August 16, 1984 No. 14 // Bulletin of the Supreme Court of the USSR. - No. 5. - 1984.

[5] Ruling of the Supreme Court of the Russian Federation in the case of K. // Bulletin. Supreme Court of the Russian Federation. 2002.- No. 6.- P. 17.

[6] Commentary on the Criminal Code of the Russian Federation (article-by-article) / A.A. Ashin, A.P. Voitovich, B.V. Volzhenkin and others; edited by A.I. Chuchaeva. M.: CONTRACT, INFRA-M, - 2009.- P. 458.

[7] Kolosovsky V.V. Necessary defense: problems of criminal legal qualifications//Law and Politics. – 2008. – No. 3. – P.34.

[8] Kochoi S.M. Criminal law. General and Special parts: short course. M.: CONTRACT, Wolters Kluwer, - 2010.- P. 127.

[9] Determination of the Supreme Court of the Russian Federation of May 22, 2003 N 3-DP03-6 // Bulletin of the Supreme Court of the Russian Federation. – 2004. – No. 2.

[10] Kolosovsky V.V. Necessary defense: problems of criminal legal qualifications//Law and Politics. – 2008. – No. 3. – P.34.

[11] Criminal law of Russia. General part: textbook / D.I. Aminov, L.I. Belyaeva, V.B. Borovikov and others; edited by V.P. Revina. 2nd ed., rev. and additional M.: Justitsinform, - 2009. - P. 214.

[12] Criminal law of the Russian Federation. General part: Textbook / Yu.V. Gracheva, L.D. Ermakova, G.A. Esakov et al.; edited by L.V. Inogamova-Khegai, A.I. Raroga, A.I. Chuchaeva. 2nd ed., revised. and additional M.: CONTRACT, INFRA-M - 2008.- 560 p.

[13] Criminal law of Russia. General part: textbook / D.I. Aminov, L.I. Belyaeva, V.B. Borovikov and others; edited by V.P. Revina. 2nd ed., rev. and additional M.: Justitsinform. - 2009. - 312 p.

[14] Criminal law of the Russian Federation. General part: Textbook / Yu.V. Gracheva, L.D. Ermakova, G.A. Esakov et al.; edited by L.V. Inogamova-Khegai, A.I. Raroga, A.I. Chuchaeva. 2nd ed., revised. and additional M.: CONTRACT, INFRA-M - 2008.- 560 p.

[15] Collection of decisions of the Presidium and rulings of the Judicial Collegium for Criminal Cases of the Supreme Court of the RSFSR. M. - 1981. - 39, 40 p.

[16]Sidorov B.V. Criminal legal guarantees of lawful socially beneficial behavior. Kazan, 1992. – 74 p.

[17]Handbook for criminal judges/ed. A.I. Raroga. M.: Welby, Prospect. - 2007. - 56 p.

[18] Naumov A.V. practice of applying the Criminal Code of the Russian Federation: commentary on judicial practice and doctrinal interpretation (article-by-article). Wolters Kluwer. - 2005. P. 410.

[19] Esakov G.A., Rarog A.I., Chuchaev A.I. Handbook for criminal judges / resp. ed. A.I. Rarog. M.: Welby, Prospect. - 2007. - P. 347.

[20] Naumov A.V. Practice of application of the Criminal Code of the Russian Federation: commentary on judicial practice and doctrinal interpretation. Wolters Kluwer. - 2005. - 320 p.

Differences between extreme necessity and necessary defense

1. If absolutely necessary, the threat can come from completely different sources, including natural disasters. With the necessary defense, the danger always comes from a person. Only a person can be the source of a criminal attack. And harm during the necessary defense can only be caused to a person.
2. If absolutely necessary, harm is caused in material equivalent to third people who are not involved in the initial occurrence of the threat. With the necessary defense, harm is necessarily caused to the person who originally tried to commit a criminal offense.
3. If absolutely necessary, the danger of a threat to human life is eliminated; if absolutely necessary, the possibility of causing significant damage to property is eliminated, and it is protected from attacks.
4. If absolutely necessary, causing damage to the property of third parties did not imply the possibility of a different development of events, a different choice of actions. With the necessary defense, a person could objectively have a choice to run away or ask for help, but at the same time he chose to cause harm in order to save his own life.
5. In cases of extreme necessity and necessary self-defense, the initiative to commit actions to cause harm comes from the person himself.
6. Material damage caused in a state of extreme necessity can be compensated by the person who caused it in full or only in part, depending on the circumstances. With the necessary defense, the harm, of course, is not even partially compensated.

What is an emergency?

A state of extreme necessity is a situation in which a person is objectively forced to cause some material damage to third parties in order to avoid even greater harm. The main feature of this is that material harm is always caused to those persons who are in no way involved in the dangerous situation that has arisen. The reason for taking action in conditions of extreme necessity may be the criminal actions of another person, natural disasters, or force majeure circumstances.

In conditions of extreme necessity, there must be a real threat, and the harm that is possible, and which the person is trying to eliminate, must be more significant than the harm that was caused by the person to someone else’s property. In this case, the person must be sure that the harm cannot be eliminated in any other way, that is, this is the only possible way to prevent dangerous consequences. Moreover, this concept is used mostly in civil law and concerns specifically material damage. In this case, there may be cases when harm can be caused to a person, and even death can be caused.

Damage caused to someone else's property by this person must be compensated to third parties if it exceeded the possible threat. An example of this action would include, for example, the demolition of a building to prevent the spread of fire during a fire, for example, a barn. That is, the fire could have spread through the barn to a residential building, causing significant material damage to its inhabitants, and causing harm to its residents, including the death of household members. Here, there is clearly less material damage (demolition of a barn) compared to the possibility of a fire in a residential building along with its inhabitants.

Crimes

Civil law allows us to determine the differences between the concepts described above. The situations are quite similar, because there is a dangerous circumstance in which it is necessary to break the law. Let's say self-defense is needed, because of which the criminal will suffer. The legality of the actions will be justified if self-defense was truly necessary. Let's look at the table to make it clearer what the difference between the concepts is.

The table briefly shows how these situations will differ. The civil law differences between these definitions are obvious. As the characterization shows, the other is the basis for protection, as well as the purpose. Otherwise the situations are similar.

Key criteria

Not every action can be considered an extreme necessity. The recognition conditions are as follows:

1. There is a danger to interests protected by law. It can come from natural forces, faulty machines, animals, or humans. If the subject himself creates a threat and eliminates it himself, he will be held accountable if he provokes a situation with the aim of causing harm to other protected interests.
2. There is a risk of immediate harm. If danger may occur in the future, then only preventive measures are possible that do not involve causing harm (purchase of a fire extinguisher to prevent a possible fire). Past danger cannot be the basis for qualifying actions under Art. 39 of the Criminal Code of the Russian Federation. Extreme necessity is possible in the case when the protected good has not yet been lost.
3. The danger cannot be eliminated by any other means other than causing damage to relationships protected by criminal law. If it is possible to use other measures, then the subject will be responsible for the consequences in accordance with the law.

Another condition is that the limits of legality of extreme necessity must not be exceeded. This means that the damage caused must be less than the damage prevented. The infliction of harm equal in severity to the danger prevented cannot be recognized as an act of extreme necessity. In this regard, for example, saving one’s own life at the expense of the death of another person cannot be qualified under Art. 39 of the Criminal Code of the Russian Federation.

Key signs of acts

All actions on the part of the defending person are law enforcement. They become such if the subject has committed a violation. All permissible actions stipulated by law are always unilateral.

The important point is that if a violation is committed, there is no need to seek help from authorized employees. In this regard, the actions of the defender are not just law enforcement, but also operational. In addition to these points, every citizen must understand that any of his actions can be challenged in court.

Special cases

An extreme necessity may be the infliction of death on one person in order to preserve the lives of many.

So, for example, the driver of an electric train noticed a passenger car crossing the crossing while moving. The car appeared unexpectedly. The train speed was 70 km/h. The driver decided not to apply emergency braking, as it could cause a train crash and the death of passengers. So he applied normal braking. As a result of a train hitting a car, the driver was killed and the passenger was injured. During the technical examination, the correctness of the driver’s actions was proven. The court found that the perpetrator acted under conditions of extreme necessity.

Illegality of action

Article 39 of the Criminal Code of the Russian Federation contains an indication that compliance with the limits of extreme necessity is mandatory. Otherwise, the person’s actions will be considered criminal.

The limits of extreme necessity are considered exceeded if the subject caused harm that clearly did not correspond to the degree and nature of the danger, as well as the circumstances in which this threat was eliminated, i.e. the damage was equal to or more significant than that prevented (Part 2 of Article 39 of the Criminal Code of the Russian Federation) . In such cases, the perpetrator faces criminal penalties if the harm was caused intentionally.

Extreme necessity is a state of threat of harm to protected interests, in which the elimination of harm is possible only by causing damage to interests that are of less importance from the point of view of criminal law. It arises as a result of human or natural actions. In cases of extreme necessity, a conflict of interests protected by law thus arises. To prevent damage to one of them, it becomes necessary to harm another interest.

So, for example, to prevent the spread of fire along a street in a village, the head of the village council decided to dismantle two houses in the path of the fire despite the objections of the owners. As a result, the fire was stopped and 50 houses were saved.

The actions of the head of the village council formally fall under Art. 167 of the Criminal Code (deliberate destruction of property). But in fact they are not criminal, since they were committed under conditions of extreme necessity. It was not possible to save the homes of other citizens by any other means.

Signs of necessary defense

Signs related to assault:

1. Social danger inherent in crimes: the actions of the offender can cause significant harm to legally protected benefits. Antisocial actions and administrative offenses do not apply here.
2. Reality: the attack exists in reality, and not in the imagination of the defender. Exception: conscientious misconception about the essence of what is happening does not eliminate this sign.
3. Cash: the encroachment has already begun and is not over yet. However, the presence of a sign is also possible in cases where:

• there was an obvious threat of immediate encroachment;
• the moment when the attack ended was not clear.

Signs related to defense:

1. Only goods protected by law can be protected. Thus, causing harm while trying to avoid arrest for committing a crime is precisely why it cannot be considered lawful.
2. Damage is caused only to the trespasser.
3. Protection must be timely (this sign of protection is correlated with such a sign of an encroachment as its presence).
4. It is unacceptable to exceed the limits of defense, which means intentionally causing damage that is obviously not correlated with the degree and nature of the danger of an attack (the criterion is applicable only to protection from attacks that do not involve life-threatening violence).

State

Harm to other legitimate interests means that harm is caused to the interests of others.

That is why the requirements imposed by law to qualify a state of emergency are much stricter in comparison with assessing the state of necessary defense.

To feel this line, one must understand that harm caused in a state of extreme necessity is inflicted only when a person has no other way to escape from danger.

An important condition for the legal qualification of a state of emergency is the amount of harm caused . This value cannot be equal to or greater than the amount of harm prevented.

Presence of danger

This is one of the essential conditions for recognizing a person’s actions as lawful in a state of extreme necessity. Determining the existence of a danger will depend on the characteristics of its source, the transience and suddenness of its occurrence. That is why it is necessary to talk about the presence of a threat not only when it has already appeared, but also if it is inevitable and difficult or impossible to eliminate.

Citizens of Russia, foreigners and stateless subjects can participate in eliminating the danger if absolutely necessary.

Conditions of legality

, the absence of other ways to eliminate the threatening danger and the amount of harm caused is taken into account

Administrative legislation, excluding the liability of a person who committed an offense in a state of extreme necessity, does not evaluate such actions as an offense.

When assessing a person’s behavior to qualify as a state of extreme necessity, only actions that result in the formation of an offense that bears legally prescribed liability should be recognized as harm caused to them.

A person committing these acts in a state of extreme necessity is not legally recognized as guilty, which precludes bringing him to administrative responsibility.

Similar and different features of extreme necessity and necessary defense

These concepts are used in the same area, which means they have a lot of similar features. General characteristics include:

• the law officially allows harm to the health, interests and even life of another citizen to protect the interests of other subjects;
• every citizen can use his legal right, but it is not an obligation, only in exceptional situations;
• the threat to life or health must be real and justified, and the actions and attacks must coincide in time;
• the subject's actions must be within the limits of self-defense, but not an intentional act.

Differences between extreme necessity and necessary defense also exist and are described in the current legislation. These theses read as follows:

• necessary defense and the conditions for its legality differ from extreme necessity. For example, killing a person to prevent panic on a sinking ship will be justified if it is done to save other passengers. Here the moral aspect comes into play when one has to choose between a greater and a lesser evil;
• for each type of action there must be sufficiently serious infringement or threat of danger for the act to be considered lawful;
• source of danger: in case of necessary defense, these are the actions of another person, and in case of extreme necessity - external factors (avalanche, flood, etc.), faulty mechanisms, physical processes and actions of people.

These two concepts have many similarities and differences. The correct interpretation of the actions of the defendant will determine the degree of punishment and the need for prosecution. To prove the absence of intentional actions, it is worth considering these points. Some details on the topic can be found in the video:

Acceptable conditions for causing harm

Understanding the nuances of a state of emergency, it is worth paying attention to the root causes that pose a threat.

The basis for causing harm when absolutely necessary is an individual who, through his actions, causes harm or threatens to cause harm to another person.

And also, the root causes include uncontrolled natural phenomena (earthquake, fire, flood, hurricane, etc.); animals that have attacked a person (wild or domestic); faulty car. The list of root causes is not closed.

Causing harm can be justified only if the person had no other way to save the most valuable good.

Having discovered a threat, he must try to find a non-illegal way to prevent or eliminate such a threat. When such a path is not found, then measures are taken to the least extent that violate legally protected interests. In other words, actions are committed consciously, actions that constitute an offense, but are the least dangerous.

The question rightly arises of comparing the harm prevented and caused. They are compared by taking into account the social state of the interests being violated with those being protected.

For example, when comparing human life or health with property interests, preference will certainly be given to the first.

In circumstances where the protection of some property interests has become a consequence of the violation of other property interests, the assessment of harm is made according to the criterion of the cost perception of the harm prevented and caused.

It should be noted that exceeding the limits of extreme necessity entails criminal liability , according to Article 39 of the Criminal Code of the Russian Federation .

What is necessary defense and its limits?

Necessary defense (Article 37 of the Criminal Code of the Russian Federation) is the lawful suppression of a socially dangerous attack while protecting the interests of the individual, society or state by causing harm to the offender, which outwardly resembles a crime.

Causing harm to an offender is the natural right of any person. According to Part 3 of Art. 37 of the Criminal Code of the Russian Federation, the provisions of this article apply equally to all persons, regardless of their professional and other special training and official position. The rule of necessary defense also applies in the case when a person has the opportunity to avoid an attack or seek help from other persons or authorities.

The basis for the necessary defense is the commission of a socially dangerous attack by a person, i.e. actions aimed at causing damage to interests protected by criminal law.

Encroachment is often an attack (aggressive, violent and, as a rule, sudden actions), but socially dangerous non-violent actions are also an assault: non-violent robbery, theft, illegal hunting, etc. Socially dangerous actions that do not threaten immediate harm, such as violation of copyright and related rights, accepting a bribe, etc., do not provide grounds for the necessary defense. Socially dangerous inaction is not an encroachment.

With the necessary defense, the obligatory goal is to protect the interests of the individual, society, and state by suppressing socially dangerous encroachment. If a person pursues another goal, for example, revenge in connection with hostile relationships, his actions are qualified on a general basis.

According to paragraph 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated September 27, 2012 No. 19 “On the application by courts of legislation on necessary defense and causing harm when detaining a person who has committed a crime” in case of a bona fide mistake (when the situation gave reason to believe that a real socially dangerous crime was being committed encroachment, and the person who applied protective measures did not and could not realize the absence of encroachment), the actions are assessed as committed in a state of necessary defense. A person who has exceeded the limits of protection permissible in the conditions of a corresponding real attack that is not associated with violence dangerous to the life of the defender or another person, or with an immediate threat of such violence, is subject to liability for exceeding the limits of necessary defense. If a person did not realize that there was no socially dangerous attack, but due to the circumstances of the case he should and could have realized this, his actions are assessed as a careless crime. If the person had no reason to believe that a socially dangerous attack was taking place, an intentional crime was committed.

The assessment of the use of means and mechanisms established in advance for the protection of legally protected interests is devoted to paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of September 27, 2012 N 19, the main meaning of which is that the use of such devices that operate autonomously at the time of the commission of an attack and causing harm to the attacker, the provisions on necessary defense apply. If the harm caused is clearly excessive, then the person’s actions may be considered to exceed the limits of necessary defense.

Conditions characterizing defensive actions: interests protected by criminal law can be protected; protection must be timely; protection is carried out by causing harm to the offender; the limits of necessary defense must not be allowed to be exceeded.

Deliberate actions that clearly do not correspond to the nature and degree of public danger of the encroachment are recognized as exceeding the limits of necessary defense.

In Art. 37 of the Criminal Code of the Russian Federation, attacks are divided into two types:

1) involving violence dangerous to the life of the defender or another person, or with an immediate threat of its use;

2) not associated with such violence or such a threat.

Exceeding the limits for the first type of encroachment is not provided.

According to Part 2.1 of Art. 37 of the Criminal Code of the Russian Federation are not an excess of the limits of the action of the defender, caused by the surprise of the attack, if the person could not objectively assess the nature and degree of danger of the attack.

Deliberately exceeding the limits of necessary defense is socially dangerous, and therefore entails criminal liability in cases of murder or infliction of grievous bodily harm (part 1 of article 108 of the Criminal Code and part 1 of article 114 of the Criminal Code).

Concept of necessary defense

Having mentioned the state of necessary defense, let us understand the differences between extreme necessity and necessary defense.

A person’s behavior in a state of necessary defense is nothing more than an action, justified from a legal point of view, and aimed at protecting himself from an attacker by causing him harm.

The legality of the state of necessary defense is assessed based on the combination of the following conditions: the attack must be committed in reality and be real , i.e. have the beginning of action or be in a state of “about to begin.”

A person should begin to defend himself not when, for example, they shoot at him or hit him in the face, but when the reality of this arises .

It is allowed to defend not only personal rights and interests established by law, but also the rights and interests of other citizens , even complete strangers.

In a state of necessary defense, harm is necessarily caused to the attacker. When defense is carried out without causing such harm, it is not recognized as a state of necessary defense.

We must remember! In a state of necessary defense, the harm caused is directed exclusively to the attacker and no one else.

What is the difference?

Outwardly, behavior delineated by the boundaries of the state of necessary defense and the state of extreme necessity look, at first glance, nothing less than an offense.

In fact, these actions are socially beneficial .

Let's consider the difference between necessary defense and extreme necessity.

In a state of necessary defense, harm is caused to a specific person - the source of the threat of attack or the one committing the attack itself. The harm caused to him in this case should be minimal.

Behavior in a state of necessary defense, as a rule, retains the ability to choose means to repel an attack.

In cases of extreme necessity, harm is caused to other (third) parties. Those. innocent persons. These are not only individuals, but also legal entities. The amount of harm caused to another person should not be equal to or greater than the harm prevented.

So, the difference between necessary defense and extreme necessity is that behavior in a state of extreme necessity involves choosing only those means to eliminate danger that cause the least harm. And with the necessary defense, comparison of the harm caused with the harm prevented is excluded.

What is the difference between necessary defense and extreme necessity?

How does necessary defense differ from extreme necessity, as well as from causing harm when apprehending a criminal?
In the article we will look at the signs of the legitimacy of defense, and then answer this question. For the convenience of the reader, a detailed comparison table is provided below. The institution of necessary defense is enshrined in the Criminal Code of the Russian Federation (Article 37) in development of the provisions of the Constitution of the Russian Federation on the right of everyone to protect their rights and freedoms by any means not prohibited by law. In addition, this institution allows you to protect not only your own, but also other people’s goods belonging to other individuals, society or the state, that is, to fight crime.

Like other circumstances that eliminate the criminality of acts, necessary defense involves causing harm to legally protected values. The right to it is recognized by the state regardless of the availability of opportunities:

• escape from attack by flight;
• call others for help;
• contact the authorities.

The basis for the emergence of a situation of necessary defense is a specific type of danger emanating from a person - “socially dangerous encroachment”. The concept of encroachment is evaluative; it is not defined by law. Moreover, it is not identical to the concept of crime, but correlates with it as particular and general.

In practice, the following are not considered an encroachment:

• actions that do not threaten immediate harm (for example, attacks on intangible benefits - honor, dignity, copyright);
• socially dangerous inaction.

As a rule, an assault is a violent and sudden action. But the institution of necessary defense also applies to non-violent attacks.

The existence in a situation of necessary defense of two opposing actions (encroachment and protection from it) predetermines 2 groups of characteristics characterizing the institution under consideration.

Penalties provided

If a person exceeds the permissible limits, he may be subject to criminal prosecution. Because a citizen must remember that his actions must be proportionate to the danger. If he forgets about this, then he will have to answer according to the article.

Exceeding permissible self-defense may result in correctional or forced labor or imprisonment for one year. A similar punishment is applied if serious harm was caused to the health of the attacker. If, during the arrest of the criminal, he was harmed, defined as grave or moderate, then the term will increase to two years.

Note that if the defense led to death, then the victim can be imprisoned for up to two years. A similar penalty applies if the killing occurred in response to a minor threat.

Basic provisions of legislation on the issue

Article 37 of the Criminal Code of the Russian Federation states that exemption from liability for harm caused is provided for the attacker if the victim encroached on the life or health of the perpetrator. Thus, the actions of the accused person will be considered lawful and called necessary self-defense or extreme necessity.

In fact, we will talk about the circumstances in which the subject finds himself and when he has the right to use all necessary actions to protect himself. In addition to the detailed description in the article of the Criminal Code of the Russian Federation of self-defense, there are also other clauses that provide for the release of the responsible person from liability when state and public interests are endangered, and the circumstances cannot be eliminated in any other way. The essential point is that the defending citizen should not exceed the limits of extreme necessity. If this happened, he will be held criminally liable.

Comparative analysis

Additionally, we will conduct a comparative analysis to make it clear by what criteria one can determine the necessary defense and extreme necessity. Let us emphasize that self-defense can only be used against a person who threatens health and life. If absolutely necessary, the cause of danger can be a citizen in an inadequate state, or an animal, a mechanism or an emergency situation.

Let's continue the comparison, and now we'll figure out how to eliminate the threat. In self-defense, the main condition is to cause harm exclusively to the criminal. In case of urgent need, damage may be caused to both persons and objects or animals. For example, they will demolish someone else’s barn so that the fire does not spread through it to another house.

Similar rules apply to both Russia and Ukraine. Therefore, citizens should remember these points. Otherwise, you may fall under the article if the permissible measures to eliminate the threat are exceeded.