Review article
Exceeding the Boundaries of Necessary Defence Due to the Excusable Extreme Fear
Igor Bojanić
Joso Vuksan
; Ministry of the Interior, Zagreb, Croatia
Abstract
Due to the consistent implementation of normative theory of culpability, the legislator has prescribed two excusable grounds in the general part of the Croatian Criminal Code: exceeding the boundries of necessary defence due to the excusable extreme fear caused by the attack which excludes the culpability of a perpetrator as well as necessity with the same legal effect. The paper deals with exceeding the boundaries of necessary defence due to the excusable extreme fear primarily because of its practical importance, since the institution of necessary defense, including the problem of exceeding its boundaries, appears on an almost daily basis before the courts. Since the Article 21, paragraph 4 of the Criminal Code was modeled on the provisions on the extension of necessary defence as excusable ground in comparative criminal law, the paper analyzes their similarities and differences compared to foreign models. Furthermore, the paper explains ratio legis of exceeding the boundries of necessary defence as an excusable ground and discuses all the possible issues in the practical implementation of the stated provision: the role of excusable extreme fear as the cause of excessive behavior of the perpetrator, possible manifestations of exceeding the boundries of necessary defence due to the excusable extreme fear, as well as the application of Article 21, paragraph 4 of the Criminal Code in the case of limitations of the right to self-defense and putative self-defense.
Keywords
normative theory of culpability; excusable grounds; exceeding the boundaries of necessary defence
Hrčak ID:
183849
URI
Publication date:
30.6.2017.
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