Judicial Determination and Judgment Path of Necessity in Civil Law
Due to the lack of assumptions and vague imputation logic,there are many misunderstandings about Necessity in the theory and practice of Civil law.The judicial determination of Necessity shows that the ob-ject of damage is the most prominent problem,and the legitimate conditions and subjective intentions have not been fully implemented.There are also some problems on the determination of legal consequences,such as the faulty function of liability-rejecting and the inconsistency between the nature of excessive lia-bility and the scope of application of compensation.In accordance with the provisions of the Interpretation of the General Provisions of the Civil Code,the civil judgment of Necessity should first determine the ob-ject of damage and exclude the hedging behavior with legal or agreed obligations.When Necessity is exces-sive,it is necessary to determine the necessary limit of hedging in combination with whether the victim causes danger or not.The compensation for Necessity should be within the jurisdiction of the referee,and in the case of dangerous situations caused by human factors fair liability can be applied to judge the com-pensation.
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