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Ismailov, Otabek. "The Necessity Defense in International Investment Law." Thesis, Université d'Ottawa / University of Ottawa, 2017. http://hdl.handle.net/10393/35860.
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More than fifty investor-state arbitration claims have been filed by foreign investors against the Republic of Argentina due to the country's adoption of measures to mitigate the consequences of a severe financial crisis that struck the country in the early 2000s. Argentina invoked the Non-Precluded Measures (NPM) clause in the U.S.-Argentina Bilateral Investment Treaty (BIT) and the necessity defence in customary international law as its defense in these arbitrations. As a result of taking divergent approaches to interpreting the NPM clause in the U.S.-Argentina BIT, the tribunals reached inconsistent decisions on Argentina’s liability for damages incurred by foreign investors, which intensified the legitimacy crisis in the investment arbitration regime. Consequently, the tribunals’ approaches to interpreting the nexus requirement of the treaty NPM clause (the "necessary for" term) caused a fierce academic debate among scholars.
This thesis studies the issues related to the inconsistent interpretation of treaty NPM clauses and the customary necessity defense in the investment arbitration regime. It presents a detailed examination of the necessity defense in customary international law and treaty NPM clauses through the lens of regime theory. By applying relevant concepts of regime theory, such as regime formation, regime attributes, regime consequences and regime dynamics, this work explores the origins and evolution of the necessity doctrine, and provides a comparative analysis of the attributes, structural elements and the consequences of invoking the customary necessity defense and treaty NPM clauses.
This thesis analyses the interpretative issues in the Argentine cases, and based on the dynamics of developments in the practice of states, it arrives at concrete proposals that will contribute to the coherent practice of investment arbitration tribunals in interpreting treaty NPM clauses. By applying the concept of interaction of regimes, this thesis provides a comparative analysis of tests suggested by scholars for interpreting Article XI of the U.S.-Argentina BIT. It examines whether the interpretative testsmargin of appreciation, proportionality and less restrictive meansused by dispute settlement bodies in other specialized treaty regimes have the potential to serve as an optimal standard for interpreting Article XI. This work explains the contents of these tests and inquires as to the advantages and criticisms related to their application in the investment arbitration regime. This thesis further advances the argument that the interpretation of treaty NPM clauses (Article XI of the U.S.-Argentina BIT) should be performed with strict adherence to the general rules of interpretation as established under Article 31 of the Vienna Convention on the Law of Treaties (VCLT). Specifically, it argues that in cases when tribunals fail to define the meaning of a treaty provision under Article 31 (1) and (2) of VCLT, they should not look for guidance from other specialized treaty regimes, but rather, must have recourse to general international law, specifically, customary rules of international law. As a methodology for performing this interpretation, this thesis proposes to apply a systemic integration approach through operationalizing Article 31(3)(c) of VCLT.
Furthermore, this thesis advances the argument that the interpretation of the only means requirement of the customary necessity defense (Article 25 of Articles on the Responsibility of States) does not accurately reflect the contemporary customary rules on necessity. Thus, by applying the concept of regime dynamics, it proposes to reconceptualise the interpretation of the only means requirement through incorporating the elements of a more progressive version, which is found in the international trade regime. Unlike the scholars who rejected the application of the customary necessity elements, and proposed the direct importation of the LRM test from the international trade regime to interpret Article XI, this thesis proposes a different approach to taking advantage of the WTO jurisprudence. Specifically, it argues that WTO jurisprudence can be incorporated into the investment regime indirectly by serving as a source from which we can identify the development of state practice in examining the "only means" nature of state measures adopted in emergency (necessity) circumstances. It is contended that such state practice represents a more progressive and practical approach to interpreting the only means requirement of customary necessity defense, and thus, should be incorporated into the interpretation practice of investment arbitral tribunals.
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Bin, Idris Mohammad Hussin Ali. "Necessity within the legal framework of self-defence against terrorism." Thesis, University of Leeds, 2015. http://etheses.whiterose.ac.uk/13390/.
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This thesis focuses on the criteria established for the use of force in self-defence in international law. The prohibition on the use of force in Article 2(4) of the United Nations Charter is subject to exemption by way of approval from the Security Council, or by invoking the right to self-defence. The use of force in self-defence is promulgated in Article 51 of the United Nations Charter, but is understood to be restricted by the principles of necessity and proportionality. Since the attacks in the United Stated on 11th September 2001, the law on self-defence has focused on the emergence of non-state actors within the framework of jus ad bellum. In view of this, and the contemporary context, this thesis seeks to reappraise the meaning of necessity in light of terrorism. In particular, the study asks whether the meaning of necessity is affected if self-defence is applied against a non-state actor, and if so, how. It also explores the establishment of the two conditions of self-defence, necessity and proportionality, based on the Caroline incident, and examines how the Caroline doctrine has been interpreted in the formulation of rules incorporated in jus ad bellum. The understanding of necessity in self-defence is also re-evaluated by asking the role of necessity in self-defence framework. It is argued that necessity has two important roles in self-defence law. First, it argued that necessity acts as a requirement to self-defence, specifically by seeking whether an armed attack has taken place, and if so, whether there is an alternative option to the use of non-forcible measures. Second, necessity acts as a limitation to self-defence, establishing that any defensive measures must be employed solely to achieve the legitimate aim of self-defence, which is to halt and repel an armed attack. However, it is difficult to assess necessity as a limitation on the use of force in self-defence when force is directed against terrorist groups.
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O'Meara, Christopher. "Necessity and proportionality and the right of self-defence in international law." Thesis, University College London (University of London), 2018. http://discovery.ucl.ac.uk/10057299/.
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When states use force extraterritorially, they invariably claim a right of self-defence. They also accept that its exercise is conditioned by the customary international law requirements of necessity and proportionality. To date, these requirements have received little attention. They are notorious for being normatively indeterminate and operationally complex. As a breach of either requirement transforms lawful acts of self-defence into unlawful uses of force, increased determinacy regarding their scope and substance is crucial to how international law constrains military force. This thesis addresses this fact. It examines the conceptual meaning, content and practical application of necessity and proportionality as they relate to the right of self-defence following the adoption of the UN Charter. It provides a coherent and up-to-date description of the lex lata and an analytical framework to guide its operation and appraisal. It does this by undertaking the first comprehensive review of relevant jurisprudence, academic commentary and state practice from 1945 to date. Although the operation of necessity and proportionality is highly contextual, the result is a more determinate elaboration of international law that bridges theory and practice. This greater normative clarity strengthens the law's potential to exert a pull towards compliance. Necessity determines whether defensive force may be used to respond to an armed attack, and where it must be directed. Proportionality governs how much total force is permissible. This thesis contends that the two requirements are conceptually distinct and must be applied in the foregoing order to avoid an insufficient 'catch-all' description of (il)legality. It also argues that necessity and proportionality must apply on an ongoing basis, throughout the duration of an armed conflict prompted by self-defence. This ensures that the purposes of self-defence are met, and nothing more, and that defensive force is not unduly disruptive to third party interests and international peace and security.
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Schuh, Sr Matthew Anderson. "The Epistemic Necessity and Ethical Permissibility of Randomized Clinical Trials: A Minimalist Defense." Scholarly Repository, 2008. http://scholarlyrepository.miami.edu/oa_dissertations/167.
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I argue for two main theses that are at odds with the positions of many clinical researchers and philosophers who write on the ethics of clinical research. The first is that certain types of clinical trials, namely, randomized clinical trials with double or triple blinding and a placebo group are generally necessary to establish that a medical intervention is effective in treating a certain type of disease or disorder. The second main thesis is that such trials are generally not ethically impermissible. My minimalist defense of clinical trials differs from most defenses of clinical trials found in the literature. I feel that the ethical permissibility of clinical trials can be judged by answering yes to the following questions: 1) Is the potential experimental subject competent to exercise his autonomy and his right of self determination in order to enroll in the clinical trial? 2) Is the potential experimental subject informed about the nature of risk and benefit involved in his participation in the clinical trial? 3) Is the trial scientifically/ epistemically valid? 4) Will the trial attempt to answer a scientific question or questions of value? I argue that competent persons have the right to enroll in scientifically valid clinical trials so long as they are informed and consent to participate.
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Cashen, Kevin M. "A compilation of necessary elements for a local government continuity of operations plan." Thesis, Monterey, Calif. : Springfield, Va. : Naval Postgraduate School ; Available from National Technical Information Service, 2006. http://library.nps.navy.mil/uhtbin/hyperion/06Sep%5FCashen.pdf.
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Thesis (M.A. in Security Studies (Homeland Security and Defense)--Naval Postgraduate School, September 2006.Thesis Advisor(s): Ellen M. Gordon. "September 2006." Includes bibliographical references (p. 63-65). Also available in print.
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Morris, Brendan Scott. "A Defense of Frank Jackson's Two-Dimensional Analysis of the Necessary A Posteriori from Scott Soames' Anti-Two-Dimensionalist Attacks." Oberlin College Honors Theses / OhioLINK, 2008. http://rave.ohiolink.edu/etdc/view?acc_num=oberlin1213048040.
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Lodge, Anne. "Criminal responsibility for intrusions on the rights of innocent persons : the limits of self-defence, necessity and duress." Thesis, Durham University, 2009. http://etheses.dur.ac.uk/2102/.
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This thesis is an exploratory study of the boundaries of English and Welsh criminal law where the legally protected personal and proprietary interests of innocent persons are intentionally infringed by another. Despite fulfilling the definitional elements of a criminal offence, there may be circumstances in which the law is prepared to exculpate the actor even where the interests of an innocent person are set back by the conduct. The justifications and excuses to be considered fall predominantly within the province of self-defence, necessity and duress and the correspondence between these respective domains is addressed. The aim is to explore the extent to which the criminal law in a liberal society negates criminal liability for deliberate intrusions on the rights of innocent persons by defining the precise scope of the relevant defences. The innocent persons to be considered fall into three main categories. First, the criminal responsibility of an actor who sets back the interests of an innocent incompetent person in their best interests will be addressed. Next, the liability of a defendant who infringes the rights of an innocent person who poses a threat, unjust or incidental, to the interests of the defendant or another will be analysed. Finally, the criminal responsibility of an actor who violates the rights of an innocent non-threatening bystander in order to stave off a threat to their own interests will be considered. It is argued that in English law the scope of criminal liability for intentional acts which set back the interests of an innocent person is ill-defined. An attempt is made to provide a more consistent philosophical and practical approach to the limits of criminal responsibility in this challenging area of law.
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Shirato, Yoh. "Epistemological necessity of Christocentric soteriology a defense of religious particularism in the theology of Jonathan Edwards /." Theological Research Exchange Network (TREN), 2005. http://www.tren.com/search.cfm?p003-0144.
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Shirato, Yoh. "Epistemological necessity of Christocentric soteriology a defense of religious particularism in the theology of Jonathan Edwards /." Theological Research Exchange Network (TREN) Theological Research Exchange Network (TREN) Access this title online, 2006. http://www.tren.com.
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Navikaitė, Renata. "Teisė į savigyną pagal tarptautinę teisę." Master's thesis, Lithuanian Academic Libraries Network (LABT), 2006. http://vddb.library.lt/obj/LT-eLABa-0001:E.02~2006~D_20060316_182254-43668.
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The Master's Paper analyses the scope of the right to self-defence under international law. The Author seeks to present a thorough evaluation of the provisions of the United Nations Charter, the rules formed in the customary international law, the jurisprudence of the International Court of Justice as well as the state practice in respect of the implementation conditions of the right to self-defence.The Paper also focuses on the analysis of the theory of preventive self-defence undergoing the formation process as well as on the disclosure of the predicted negative entailments attached to its legalisation.
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Mattsson, Nils-Göran. "Den moderata rationalismen : Kommentarer, preciseringar och kritik av några begrepp och teser som framlagts av Laurence Bonjour i dennes In Defense of Pure Reason." Thesis, Linköping University, Department of Religion and Culture, 2005. http://urn.kb.se/resolve?urn=urn:nbn:se:liu:diva-4543.
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The paper contains comment, clarification and criticism, even constructive criticism, of some theses that have been put forward by Laurence Bonjour in his In Defense of Pure Reason.
It presents a concept of experience that deals with the relation between cognizer and object of experience that has a great similarity to that of Bonjour. Through analysis it is shown that the concept of a priori entails that Bonjour has two concepts of a priori, a narrow and a broad one. The narrow one is, in my own words: According to moderate rationalism a proposition p is a priori justified if and only if you apprehend that p must be true in every possible world. This doesn’t mean that Bonjour doesn’t believe in an epistemological, metaphysical and semantic realm. The broad one does not mention anything about possible worlds.
Casullo in his A priori justification rejects Bonjour’s argument against Quine’s coherentism. A defense is put forward with the concept ‘an ideal of science for apparent rational insights’. The concept of axiomatic system and foundationalism is used. If we assume that the colour proposition ‘nothing can be red all over and green all over at the same time’ has the meaning that we, in this very moment, are representing a property in the world, thus we have an argument of superposition for the correctness of the proposition. The ground for this argumentation relies on the identification of colours with superposing electromagnetic waves.
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Luongo, Norberto E. 1962. ""Shooting-down laws" : a quest for their validity." Thesis, McGill University, 2008. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=111616.
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After the terrorist attacks that took place on September 11, 2001, on American soil, a plethora of norms that enable military forces to shoot-down hijacked civil aircraft have been passed in several countries. Although these laws, decrees and executive orders are grounded on security reasons and they are allegedly aimed to protect people and vital interests on ground, this assertion does not emasculate the main difficulty they face in legal terms, which is the existence of an international provision that forbids the use of force against civilian aircraft. This thesis contains a detailed list of such domestic norms and conducts an analysis of their validity from the perspective of Article 3bis of the Chicago Convention and the right of self-defense granted to states by the Charter of the United Nations.
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Cavalcanti, Rodrigo de Camargo. "CADE: o oligopólio no estado brasileiro de intervenção necessária." Pontifícia Universidade Católica de São Paulo, 2014. https://tede2.pucsp.br/handle/handle/6672.
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The main goal of the present work is to demonstrate that, in an economical structure imminently founded in oligopolies, as the Brazilian one is, it is difficult to ensure the dictates of social justice and to provide a dignified existence to all in face of the legal conduct of the economy, constitutionally implementing a State of Necessary Intervention. With the definition of Economic Rights and its inherent relation to human rights as a starting point, we will draw attention to the Competition Law and look closely to the article 170 of the Federal Constitution, as founding rule of the economic order and resulting antitrust defense model. Furthermore, we emphasise the capitalism as an economic system adopted by the Magna Carta, that establishes an economic order in which profit pursuit is legitimate. Thereafter, we will approach the institutional need of existence of the Administrative Council of Economic Defense (in Portuguese, CADE), contextualizing its inception in the Constitutions of the Brazilian Republic, in the scope of the antitrust defense, indicating some aspects of the Law 8.884/94, as well as the relevant differences to this work as put forth by the Law 12.529/11. To better clarify the question, we show our perspective of two cases of great relevance analysed by CADE, the Ambev and the Nestlé/Garoto cases. Subsequently, we will focus on the theory of concentration acts, identifying its definition according to the recente law of the Brazilian System of Competition Defense (in Protuguese, SBDC) and some of the guidelines given by CADE itself to analyse the acts. We will, then, indicate the negative effects of the concentration acts and and present a proposition to solve them: the harmonisation of the principle of prohibition of social regression with the theory by Ronald Coase of negative externalities, in light of Property Rights in the jurisprudence and German school of thought, which will allow us to bring forth the necessary adoption of new resolving criteria, eminently constitutional. Taking the oligopoly theory as basis, we enfasize the tacit collusion as exemplary unlawfulness of the problems stemmed from the support and consolidation of oligopolistic markets to, at last, discuss the Brazilian stance regarding the antitrust defense towards the international and globalized market. By way of conclusion, we propose some guidelines for SBDC and specifically for CADE, in order to stop oligopolies and follow the dictates of the Brazilian State of Necessary Intervention, as constitutionally provided, that is, an economic order for the dignified existence of all
O objetivo do presente trabalho é demonstrar que, em uma estrutura econômica eminentemente fundada em oligopólios, como a brasileira, é difícil garantir os ditames da justiça social e proporcionar uma existência digna para todos mediante a regência jurídica da economia, implantando constitucionalmente um Estado de Intervenção Necessária. Partindo da definição de Direito Econômico e de sua relação intrínseca com os Direitos Humanos, chamamos a atenção para o Direito Concorrencial e atentamos para o artigo 170 da Constituição Federal, como regra matriz da ordem econômica e modelo de defesa da concorrência decorrente. Nessa seara, salientamos o capitalismo como sistema econômico adotado pela Carta Magna, que estabelece uma ordem econômica na qual a busca pelo lucro é legítima. Em seguida, abordamos a necessidade institucional de existência do Conselho Administrativo de Defesa Econômica (CADE), contextualizando seu surgimento nas Constituições da República brasileira, no âmbito da defesa da concorrência, e elencando alguns aspectos da Lei 8.884/94, bem como as diferenças relevantes para o trabalho trazidas pela Lei 12.529/11. Para melhor elucidar a questão, mostramos nossa perspectiva sobre dois casos de grande relevância analisados pelo CADE, o da Ambev e o da Nestlé/Garoto. A seguir, enfocamos a teoria dos atos de concentração, identificando sua definição consoante a recente lei do Sistema Brasileiro de Defesa da Concorrência (SBDC) e algumas das diretrizes fornecidas pelo próprio CADE para a análise dos atos. Expomos, então, os efeitos negativos dos atos de concentração e apresentamos uma proposta para solucioná-los: a compatibilização do princípio do não retrocesso social com a teoria de Ronald Coase sobre externalidades negativas, sob a leitura do Direito de Propriedade na jurisprudência e na doutrina alemãs, o que nos permitirá trazer à tona a necessária adoção de novos critérios resolutivos, eminentemente constitucionais. Tendo como base a teoria do oligopólio, enfatizamos a colusão tácita como ilicitude exemplar dos problemas advindos da manutenção e consolidação de mercados oligopolistas para, enfim, tratarmos da postura brasileira de defesa da concorrência em relação ao mercado internacional e globalizado. À guisa de conclusão, propomos algumas diretrizes para o SBDC e especificamente para o CADE, a fim de impedir os oligopólios e seguir os ditames do Estado brasileiro de Intervenção Necessária, conforme constitucionalmente previsto, ou seja, uma ordem econômica em prol da existência digna para todos.
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Kuniochi, Hamilton Kenji. "Assistência jurídica aos necessitados: concepção contemporânea e análise de efetividade." Universidade de São Paulo, 2013. http://www.teses.usp.br/teses/disponiveis/2/2137/tde-09012014-113135/.
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Assistência Jurídica aos Necessitados: Concepção Contemporânea e Análise de Efetividade. Dissertação de Mestrado. Aborda os conceitos de justiça gratuita, assistência judiciária e assistência jurídica. Verifica o tratamento atual quanto ao atendimento das pessoas físicas e jurídicas pela Defensoria Pública, entidades não governamentais, universitárias e pelos advogados liberais. Apresenta parâmetros para atendimento do interessado. Analisa o entendimento dos tribunais quanto à comprovação da pobreza em juízo e a questão do abuso do direito.Legal Aid to the needy: Contemporary Study and Analysis of Effectiveness. Thesis. The study focuses the concepts of free justice, legal aid and legal assistance. It takes into consideration the current treatment about the care of individuals and corporations by the Public Defender Office, the non-governmental entities, universities and the liberal lawyers. Presents parameters for the service concerned. Analyzes the understanding of the courts as to prove poverty in legal proceedings and the issue of abuse of rights.
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Yambissi, Claude Désiré. "La légalité de crise en droit public français." Thesis, Lyon, 2019. http://www.theses.fr/2019LYSE3037.
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La légalité est un principe qui apparaît comme une pierre angulaire de la notion d’État de droit. L’expression « principe de légalité » a été longtemps utilisée pour affirmer que l’administration doit respecter les règles de droit. Mais, en cas d’une crise majeure, la légalité peut être atténuée. Il est toléré une légalité de crise. L’État a besoin, de disposer d’autres outils juridiques que ceux ordinaires. Des pouvoirs exceptionnels sont conférés à certaines autorités ou reconnus à certaines personnes par des dispositifs juridiques de nature très différente. Cette théorie des circonstances exceptionnelles vise à assurer la continuité de l’État. Elle repose sur l’adage controversé « nécessité fait loi » en vertu duquel dans les cas extrêmes, certains actes qui seraient illégaux en période normale sont justifiés. L’état de nécessité et la légitime défense de l’État sont les principaux faits justificatifs du recours aux pouvoirs de crise. En droit positif, les régimes de crise sont hétérogènes et redondants. La persistance de la menace terroriste accentue l’accumulation des lois et des mesures antiterroristes. L’hétérogénéité des régimes français de crise pose la question de l’unification des principaux états de crise par la réécriture de leur cadre constitutionnel. Le contrôle de l’état d’exception est tempéré par d’importantes prérogatives reconnues à l’exécutif. Cela peut être un risque pour la garantie de l’exercice des libertés fondamentales surtout lorsque l’exception devient permanente ou lorsque le droit commun est contaminé par le droit dérogatoireLegality is a principle that appears as a cornerstone of the rule of law. The term "principle of legality" has long been used to assert that the administration must respect the rules of law. But, in the event of a major crisis, legality can be mitigated. It is tolerated a legality of crisis. The state needs other legal tools than ordinary ones. Exceptional powers are conferred on certain authorities or recognized to certain persons by legal devices of a very different nature. This theory of exceptional circumstances aims to ensure the continuity of the state. It is based on the controversial "necessity is law" saying that in extreme cases, certain acts that would be illegal in normal times are justified. State of necessity and self-defense of the state are the main justifications for the use of crisis powers. In positive law, crisis regimes are heterogeneous and redundant. The persistence of the terrorist threat accentuates the accumulation of anti-terrorist laws and measures. The heterogeneity of the French crisis regimes raises the question of the unification of the main states of crisis by rewriting their constitutional framework. The control of the state of emergency is tempered by important prerogatives recognized by the executive. This can be a risk for guaranteeing the exercise of fundamental freedoms, especially when the exception becomes permanent or when common law is contaminated by the derogatory right
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Bělohlávková, Eva. "Pojem a právní důsledky překročení mezí nutné obrany a krajní nouze." Master's thesis, 2020. http://www.nusl.cz/ntk/nusl-411532.
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The term and legal consequences of exceeding the limits of extreme necessity and necessary defence Abstract This thesis deals with the concept and legal consequences of exceeding the limits of extreme necessity and necessary defence, i.e. two conditions precluding the illegality of an act, which can be found in Chapter III of the current Criminal Code. Those conditions preclude the illegality of an act that would normally be illegal, because an act under those conditions is generally desirable in order to defend the interests protected by the Criminal Code. With the absence of illegality, acts under one of the conditions precluding illegality do not at all result in the commission of a criminal offence, which in case of extreme necessity and necessary defence, allow people to defend themselves at times when the state does not provide them protection against a certain danger or attack. However, if the statutory limits of these conditions precluding illegality are exceeded, the illegality will not be eliminated and a criminal offence will be committed. The main purpose of this thesis is to analyse the Czech legislation related to extreme necessity and necessary defence in terms of its limits. In particular, it aims to reveal the shortcomings of the legislation and offer solutions. The goals and structure of...
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Drnková, Lucie. "Sporné otázky nutné obrany v judikatuře." Master's thesis, 2013. http://www.nusl.cz/ntk/nusl-324597.
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Disputed Issues of Necessary Defence in the Case Law The thesis itself is focused on the points at issue of necessary defence mainly in the field of Czech criminal law although some partial issues are also compared to the foreign legislation. In compliance with the title of the work author's attention is dedicated in the first place to case law in the areas that have not been decided by courts yet, further, the law theory is described. The thesis is composed of seven chapters, from which the first forms as an introduction, where the goals and approaches are indicated. The last, seventh section summarizes the outcomes and conclusions of the thesis and also serves as a recommendation of some useful legislative changes that can be done in the future. The Second Chapter describes the institute of necessary defense itself and its position in the system of criminal law and defines the basic terminology. The circumstances excluding criminal liability (excuse defenses) are also depicted there and distinguished from circumstances excluding lawlessness (justification defenses). The last section of this part is dedicated to the current wording of the institute of necessary defence in the valid Czech Criminal Code. The Third Chapter serves as the key part of the whole thesis and deals with the issues creating...
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Mráz, Miroslav. "Sporné otázky nutné obrany v judikatuře." Master's thesis, 2012. http://www.nusl.cz/ntk/nusl-309352.
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Resumé Controversial Issues of Necessary Defense in the Judicial Practice The purpose of my thesis is to analyze some potential problems in the case law of necessary defence. Studying the judicature alw ays helps the law yers to understand better the subject, because in a particular case, the law is used "in action" and explained by the judges. The thesis is composed of five chapters, each of them dealing w ith different aspects of criminal law or more precisely of necessary defence case law . Chapters One to Three introduce and describe the basics of czech criminal law , the intent of criminal law and criminal liability. Which are the ground topics of defence law . Chapter Four is the main chapter of the thesis and deals w ith defences - necessity and necessary defence. Chapter Four is divided into tw o subchapters. The first of them deals, as said before, w ith necessity. The second one w ith necessary defence and is itself divided into nine parts. Part One deals w ith the historically development of necessary defence and shortly introduces four (more precisely only three) different versions of those past and present legal forms. Parts Tw o to Seven examine the basic parts of necessary defence, those are: subsidiarity, attack, adequacy, excess from necessary defence, w eapon use in necessary defence and...
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Vajc, Vojtěch. "Sporné otázky nutné obrany v judikatuře." Master's thesis, 2019. http://www.nusl.cz/ntk/nusl-398299.
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Contentious issues of necessary defence in judicial practise Abstract The subject of this thesis is necessary defence, or more precisely some of its contentious issues that have been dealt with by Czech courts within the framework of their judicial practise. The fundamental focus of the thesis lies with the judicial decisions providing solutions to these issues, emphasis, on the other hand, is not placed on doctrinal concept of the legal institute. The thesis subjects some of the judicial decisions to evaluation and comparison with other judgments. As for the structure, the thesis is divided into a total of seven chapters with regard to the elements of necessary defence that are primarily related to the issues dealt with by the judicial practice in each particular case. The first chapter presents a brief general outline of the topic, as it pursues, above all, the function of the legal institute of necessary defence, the way how it is established within the Czech law and the character of the relevant provision of the penal code. Chapter two deals with integral prerequisites or structural elements of necessary defence, specifically attacker and defender subjects, as well as attack itself. It ponders about whether someone who is not primarily targeted by an attack can be deemed a defender. The same question is...
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Svobodová, Tereza. "Sporné otázky nutné obrany v judikatuře." Master's thesis, 2018. http://www.nusl.cz/ntk/nusl-375553.
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Disputed Issues of the Necessary Defence in Judicial Practice Abstract The thesis focuses on the issue of necessary defense in the Czech legal system, especially on the analysis and solution of the disputed queries that arrise when applying and interpreting this issue with respect to legal regulations. The main attention is dedicated to judicial decisions, however, some of the disputable issues addressed in the criminal law theory are not neglected. The thesis is composed of six chapters, together with the chapter of the Introduction which provides the basic definition of the issue and the main purpose of the work, and the Conclusion, which presents the final reflections on the findings and concludes the work. The First Chapter deals with general basics of criminal liability, focusing in particular on the concept of illegality, since the necessary defense is among the circumstances excluding illegality, which at the same time represents a reason for excluding the criminal liability of the acting person. The very circumstances excluding criminal liability are briefly mentioned and listed in Chapter Two. The purpose of the Third Chapter was to characterize the concept of extreme distress and to distinguish it from essential elements of the necessary defence which represents its privileged case. The main part...
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Zoubková, Tereza. "Sporné otázky nutné obrany v judikatuře." Master's thesis, 2018. http://www.nusl.cz/ntk/nusl-389007.
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Contentious issues of necessary defence in judicial practise The subject of this thesis is necessary defence in Czech criminal law. Necessary defence is defined as an action which is usually considered illegal but because it is made in defence against an imminent or persistent attack on values protected by criminal law, it is not considered a crime. The law also states that the intensity of this defence cannot be clearly and obviously disproportionate to the form of the attack. This thesis focuses primarily on contentious issues that courts often deal with when they interpret and apply necessary defence in real cases. Before focusing on contentious issues this thesis first describes the basics of necessary defence. Since necessary defence is one of the circumstances excluding liability in Czech criminal law, this thesis first briefly describes these circumstances. In the next section the thesis focuses on the conditions and limits of necessary defence as they are defined in criminal law. Necessary defence is comprised of an attack and a corresponding defensive action. This section first focuses on the obligatory attributes of the attack and then on the conditions of the defence. Next this section describes the consequences of violating the limits of necessary defence and then it focuses on putative...
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Kabát, Robert. "Okolnosti vylučující trestnost." Doctoral thesis, 2018. http://www.nusl.cz/ntk/nusl-373689.
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214 SUMMARY Circumstances excluding punishability 1. The main purpose of this thesis is to analyze the nature of the circumstances, which are standardized in Czech criminal law, as circumstances excluding unlawfulness. Main focus is on two of them that, in both historical and international comparison, are not in all circumstances conceived as so-called justification (circumstance excluding unlawful- ness), but also as a reason for excluding subjective criminal liability (excuse). 2. The concepts of criminality, criminal liability and anti-legality in their various con- cepts, which can be found in the theory of criminal law, are first analyzed. Thus, in par- ticular, the concepts of formal and material criminality, formal and material unlawfulness, so-called criminal unlawfulness and special unlawfulness are clarified consecutively. The result of this investigation is the conclusion that unlawfulness is only one and expresses a contradiction with the whole legal order. This concept should be distinguished from the concepts of criminality (as attribute) and criminal liability. Unlawfulness is their condi- tion. In this general part, the place of unlawfulness in the system of elements of crime, and its functions in that system are analyzed. 3. In the second part, the thesis focuses generally on the...
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Smetana, Jan. "Sporné otázky nutné obrany v judikatuře." Master's thesis, 2016. http://www.nusl.cz/ntk/nusl-354329.
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1 Abstract This diploma thesis deals mainly with the issue of necessary defense in Czech law focusing on some of the disputable queries brought by its application and interpretation. The primary fixation of this thesis is on the judiciary decisions, however, the work deals with the theoretical foundations and resources of the necessary defense. The aim of this work is to introduce the matter of necessary defense, to highlight the disputable queries appearing when applied and analyze their solution. This work is divided into six chapters. First chapter names and explains particular excuse defenses. Second chapter deals with the term of necessary defense, its development and valid legislation regarding it. Third chapter brings the analysis of the self-defense itself in consideration of judiciary decisions and expert literature and examines legal conditions of its application. The chapter is furtherly divided into 3 subheads. Subhead 3.1 explains the attack, subhead 3.2 approaches the interests protected by the Penal Code and subhead 3.3 deals with the apparently unreasonable defense. Excesses from the necessary defense are described in fourth chapter. Fifth chapter deals with so called putative defense in the judiciary decisions. The last, sixth chapter focuses on the automatic defense mechanisms and defense...
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Blair, Mary S. "Shoring up defense : the necessary transformation of Japan's self-defense force legislation." Thesis, 2004. http://hdl.handle.net/10125/11452.
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Hynková, Helena. "Sporné otázky nutné obrany v judikatuře." Master's thesis, 2014. http://www.nusl.cz/ntk/nusl-341450.
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Contentious issues of self-defence in Czech case law This thesis is focused on legal institute self-defence (in Czech law is used term necessity defence) in Czech case law. It deals with theoretical problems and contemporary legislation as well, but the most important part is (according to the name of this thesis) focused on judicial practice. The purpose of this thesis is to present some controversial issues of self-defence and analyze judical practice that deals with those issues. Nevertheless, at the end one issue that the Czech courts have not ruled on yet is also mentioned. This thesis is composed of five chapters. The first one presents the purpose of this thesis and introduces the necessity of judicial practice for controversial issues of self-defence. The second chapter introduces self-defence as a fundamental element of any democratic state. Subchapter 2.2 deals with some main principles of Czech criminal law and presents how they demonstrate themselves in self- defence. The next subchapter 2.3 focuses on benefits that self-defence brings to contemporary democratic society. The third chapter concerns with the current wording of self-defence in Criminal Code. The most important terminology is introduced. Subchapter 3.4 deals with mistake in circumstances excluding criminal lability, 3.5...
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Horský, Jiří. "Okolnosti vylučující protiprávnost v českém a německém trestním právu." Master's thesis, 2012. http://www.nusl.cz/ntk/nusl-313261.
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The thesis addresses the analysis and comparison of individual elements of defenses under Czech and German criminal legal statutes with respect to the conclusions, which are therefrom drawn in theory and practice. The aim of the thesis was to render overview concerning the distinctions in the defenses, provided that these are based on common reasoning, are generally acknowledged and theoretically elaborated, rather than to present an exhaustive commentary on all legal institutes which exclude illegality and as such come into mind. The fact that the defenses are mutually close in their character and meaning within both legal systems was a major prerequisite for the thesis. The thesis analyses the distinctions with regard to the individual preconditions of separate defenses. These distinctions are not limited only to the extent of the wording of a legal statute, they also greatly manifest in professional literature and case law. Owing to the brief and abstract nature of the respective provisions the courts and theorists developed large quantities of principles and rules which precise and sometimes even amend these provisions. The subject has been processed under consideration of the present-day legal regulation, the topics of origin and development of defenses has intentionally not been discussed....
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Hsu, Wan-Hui, and 許婉慧. "The legislative necessity for affirmative defense of insider trading in Taiwan." Thesis, 2014. http://ndltd.ncl.edu.tw/handle/24905828113911707340.
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碩士國立臺灣大學
法律學研究所
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Taiwan set the insider trading for a long time. However, we still can hear some criminal cases of insider trading somrtimes. The main reason might be the conviction rate is too low to intimidate the insiders. In order to slove this problem, we amended the law and want to block the insiders strickly. The stringent law formulate the insider will be guilty once he/she being a knowing possession and trade the stock in the same time. Unfortunately, the range of potential criminals is way too wide so there might be some unfair cases. As a result, the legislators reference the foreign legislation about the defence of insider trading provisions. In this way, the defendens could calim for innocent and overthrow the inference by proving that they are not offending insider trading regulations intentionally. The defendse prviosions had been discussed when amending the Securities Exchange Act on 2010, however, the provisions are not passed. The conviction rate of insider trading is low in Taiwan, since the reasons of defendece give the defenders a shield, the decision for defence provisions should be cautious. In order to discuss the defence provisions of insider trading, we should start with the insider trading regulations. In this thesis, I will introduce the insider trading regulations of the U.S., the EU, the U.K., Japan, China and Taiwan. And next are the insider trading defence/ exemption regulations in the countries. There are many types of defence provisions, for example, written trading plans, stabilization, takeover, etc. However, there is just one kind of defence regulation in the drft of Securities Exchange Act. This thesis wants to discuss whether the types of defence proviosn are enough in Taiwan by knowing the foreign regulations. The decision whether the defence provisions should be set also needs to consider about the courts in Taiwan. The defense provisions are preventing the defenders from easily being guilty by on a knowing possession. The provisions are using as a shield for D.A.s’ charge. The court seems not judge insider trading cases by “knowing possession” as an only standar in Taiwan. As a result, the necessity for defense provisions of insider trading in Taiwan is worth to discuss.
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Poborský, Josef. "Použití střelné zbraně při nutné obraně." Master's thesis, 2017. http://www.nusl.cz/ntk/nusl-357538.
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Use of firearm for the necessity defense This thesis is focused on conditions when a gun can be used for necessity defense under the current Czech legislation. The work is divided into five chapters. In the first chapter a gun legislation that allows citizens of Czech Republic to obtain and keep firearms is briefly mentioned with emphasis on the definition of firearm and overall description of conditions to obtain, carry and use it according to the gun legislation. The second chapter presents a general introduction into problems of circumstances that excludes the illegality. An institute of extreme emergency, a justification of gun use and so called civil detention are there more specified. The third chapter includes a detailed analysis of general characteristics of the necessity defense. This chapter further describes the issues of excess and fail in the necessity defense and some changes in legislation that were proposed in the past. The main part is the chapter four, which is focusing on use of firearms for the necessity defense itself. In the beginning of this chapter the characteristics of firearm use as a mean of ultima ratio defense are defined, with a brief excursion into firearm injuries, followed by the analysis of judicature that relates to the situation of gun use for necessity defense....
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Židová, Markéta. "Pojem a právní důsledky překročení mezí nutné obrany a krajní nouze." Master's thesis, 2020. http://www.nusl.cz/ntk/nusl-435894.
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This thesis concerns the topic of exceeding the limits of self-defence and necessity and related legal consequences. Although the concepts of self-defence and necessity exist also in other legal branches, this thesis is focused primarily on criminal law. The aim is to define the concept of excess of the limits of self-defence and necessity, including the individual types of excess, and to provide a comprehensive overview of both general and special legal consequences that can arise in case of an excess. Furthermore, this thesis strives to answer the question whether the current Criminal Code allows for all the specific circumstances of cases in which the defendant fulfils an offence definition while exceeding the limits of self-defence or necessity to be duly taken into account. First, this thesis deals generally with the topic of defences and the concept of self-defence and necessity and then analyses in detail the limits and conditions of these concepts as this matter is closely connected with the topic of excess. The crucial parts of the thesis are part three and four. The third part focuses on defining the concept of excess and its characteristics, analysing the fault element of an excess and describing the individual types of excess of self- defence and necessity limits. The fourth part deals...
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Kubíčková, Tereza. "Okolnosti vylučující protiprávnost v českém a irském trestním právu." Master's thesis, 2017. http://www.nusl.cz/ntk/nusl-265199.
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Criminal defences in Czech and Irish criminal law This thesis deals with the analysis of individual elements of criminal defences under the Czech and Irish criminal legal statutes with respect to the conclusions, which are therefrom drawn in theory and practice. The aim of this thesis is to render an overview concerning the distinctions and similarities in understanding, importance and operating of the defences in different law systems, rather than to present an exhaustive commentary on all legal institutes which exclude illegality and as such come into mind. Regarding the fact that Czech and Irish systems of law are subsumed under different legal systems, particular institutes of criminal defences cannot be based on the same rules, principles and theoretical grounds. It shall be noted, that while Czech criminal law is mainly to be found in a single piece of legislation known as the Criminal Law Act, Irish criminal law on the other hand not only has a separate statutory legislation, but also mainly depends on common law. The subject has been processed under consideration of the present-day legal regulation, whereas particular legal institutes are structured in compliance with the structure of the Czech Criminal Law Act. The topics of origin and development of defences has intentionally not been...
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Koňakovská, Petra. "Pojem a právní důsledky překročení mezí nutné obrany a krajní nouze." Master's thesis, 2011. http://www.nusl.cz/ntk/nusl-298502.
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of my Master's degree thesis in English TERM AND LEGAL CONSEQUENCES OF EXCEEDING THE PRIVATE DEFENCE AND NECESSITY LIMITS (EXCESS) The thesis examines the legal concept and legal implications of transgression of (acting outside of) private defense and necessity. It is based on the new Criminal Code, Act N. 40/2009 Coll. In some of the comparative passages the older legal regulation is mentioned, Act N. 140/1961 Coll., the Criminal Code in particular, as well as preceding penal codes. For illustration of examined concepts and definitions every charter includes case law that deals with the legal institute of private defense and necessity. The thesis is based on the Czech legal regulation and doesn't include comparison with foreign legislation. It's been caused by the short time of effectiveness of the new Criminal code which brought several substantial changes in circumstances precluding wrongfulness of an act. Significant part of the thesis is dedicated to these innovations, e.g. new privileged the fact of criminal offence of manslaughter (§ 141 CC) and infliction of bodily harm with a justifiable motive (§ 146a CC) , new legal regulation of extraordinary reduction of the term of imprisonment (§ 58 CC) and extenuating circumstances (§ 41 CC). Essentially, the new Criminal Code as a whole brought a...
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Kapras, Jiří. "Pojem a právní důsledky překročení mezí nutné obrany a krajní nouze." Master's thesis, 2013. http://www.nusl.cz/ntk/nusl-321039.
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This diploma thesis deals with the concept and legal implications of excessive self-defense (also private defense) and necessity (also distress). The two terms designate two circumstances precluding wrongfulness that the Czech Criminal Code recognizes. They have been intended to allow every person to defend himself and thus protect his rights against an attack or other forms of danger in case the state authority cannot provide for such protection. If the self-protection is executed within some acceptable boundaries that are provided by the Criminal Code, such behavior can be considered beneficial for the society and therefore nobody should be in any way punished for it. Criminal liability is only established when the given boundaries are crossed and even then there is a certain favored approach towards the perpetrator required. The intention of this diploma thesis is to address the connotations and importance of the given juridical institutes and to evaluate whether they function effectively or not, with eventual suggestions as to how to improve the result. After a short introduction the first part of the thesis deals with the concept of wrongfulness as one of the elements of a crime, and circumstances precluding the wrongfulness in general. In the end of the chapter there is a brief reflection on...
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Lang, Martin. "Pojem a právní důsledky překročení mezí nutné obrany a krajní nouze." Master's thesis, 2011. http://www.nusl.cz/ntk/nusl-298158.
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UNIVERZITA KARLOVA V PRAZE Právnická fakulta Katedra trestního práva POJEM A PRÁVNÍ DŮSLEDKY PŘEKROČENÍ MEZÍ NUTNÉ OBRANY A KRAJNÍ NOUZE Diplomová práce Martin Lang Vedoucí diplomové práce: Doc. JUDr. Jiří Herczeg, Ph.D. Praha, prosinec 2010 2 Prohlašuji, že jsem tuto diplomovou práci vypracoval samostatně, všechny použité prameny a literatura byly řádně citovány a práce nebyla využita k získání jiného nebo stejného titulu. V Praze dne 13. prosince 2010 Martin Lang 3 Poděkování Děkuji panu Doc. JUDr. Jiří Herczegovi, Ph.D., vedoucímu mé diplomové práce, za připomínky a pomoc při jejím zpracování. 4 Obsah Obsah ...................................................................................................................................4 Úvod.....................................................................................................................................5 1. Okolnosti vylučující protiprávnost v českém právním řádu .................................7 1.1 Podstata nutné obrany a krajní nouze ............................................................................8 1.2 Ústavněprávní aspekty................................................................................................10 1.3 Správněprávní...
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Raffajová, Zuzana. "Krajní nouze a nutná obrana v civilním právu." Master's thesis, 2017. http://www.nusl.cz/ntk/nusl-368629.
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This diploma thesis deals with necessity and self-defence in the light of the large recodification of private law in the Czech Republic. Together with other legal concepts they are referred to as the circumstances excluding unlawfulness. Their specificity lies in their exclusion of the obligation to compensate suffered damage provided that the conditions laid down by the law are met. This issue has always been a matter of interest to both laical and professional public as these important legal concepts form one of the most fundamental pillars of the liability system. The aim of the thesis is to point out their importance for the present codification by a comprehensive analysis of relevant legislation, conclusions of theory and case law. They have been subjected to extensive analysis as well as their Roman law roots. The key part is the comparison between Czech and German law that exceed the terms of private law. Due to their apparent connection the issue of criminal law was also included. In addition, this thesis deals with the institute of self-help in terms of its relationship with necessity and self-defence. Self-help was a typical means of protection in archaic societies but today's advanced society delegated the function of legal protection to the state by establishing independent and...
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(11208369), Brandon Rdzak. ""It is of the nature of reason to regard things as necessary, not as contingent": A Defense of Spinoza's Necessitarianism." Thesis, 2021.
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There is longstanding interpretive dispute between commentators over Spinoza’s commitment to necessitarianism, the doctrine that all things are metaphysically necessary and none are contingent. Those who affirm Spinoza’s commitment to the doctrine adhere to the necessitarian interpretation whereas those who deny it adhere to what I call the semi-necessitarian interpretation. As things stand, the disagreement between commentators appears to have reached an impasse. Notwithstanding, there seems to be no disagreement among commentators on the question of necessitarianism’s philosophical plausibility as a metaphysical view: the doctrine is wildly untenable. This consensus view is more relevant to the interpretive debate than few have recognized, since leading semi-necessitarian commentators take the doctrine’s alleged absurdity to be one of the most compelling reasons (if not the most compelling reason) to prefer their reading over the necessitarian interpretation: for, as a matter of methodological principle, great philosophers like Spinoza should not be ascribed ridiculous views in the absence of better evidence.
This dissertation seeks to defend Spinoza’s commitment to necessitarianism on both the interpretive and philosophical fronts. I argue not only that the necessitarian interpretation of Spinoza is more plausible than the semi-necessitarian interpretation on textual grounds, but that Spinoza’s necessitarianism is a serviceable philosophical view whose tenability has been almost entirely overlooked and perfunctorily rejected. The principal basis upon which I build this defense is Spinoza’s rich and fascinating view of essences—what I simply refer to as his essentialism. Spinoza’s essentialism forms the bedrock of his metaphysics and is significant not least because it underlies and informs doctrines like his necessitarianism. Spinoza’s essentialism supplies resources to answer not just interpretive problems associated with necessitarianism, but philosophical challenges to the plausibility of the doctrine. My defense of Spinoza’s necessitarianism on philosophical grounds also offers a novel way of getting past much of the current interpretive impasse among commentators by effectively undercutting the methodological motivation for the semi-necessitarian reading. In addition to my defense on the interpretive front, then, my defense on the philosophical front provides supplementary reason to a fortiori favor the necessitarian reading of Spinoza.
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Kursa, Jakub. "Pojem a právní důsledky překročení mezí nutné obrany a krajní nouze." Master's thesis, 2019. http://www.nusl.cz/ntk/nusl-405720.
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The concept and legal consequences of excessive self-defense and necessity The topic of presented diploma thesis deals with criminal law institutes of self-defense and necessity and the consequences of exceeding their limits provided by the Criminal Code. Both of the above-mentioned institutes belong to the conditions precluding illegality of an act, i.e. specific circumstances in presence which of and subject to conditions any sanction is excluded under effective law. The purpose of these institutions is to make it possible for people to act with impunity in cases they protect the interests of their own or interests of the whole society when these interests are violated or endangered. In principle, these institutes replace the absence of a public authorities at the moment, whose task is to protect these interests. However, on the other side the legislation does have certain limits to prevent from any misuse of these institutes. The key passages of this thesis are therefore focused on situations where the conditions of necessity or self-defense are not fully met and examines the legal consequences of such actions. The presented thesis is divided into six parts. A brief introduction is followed by the first chapter, which deals with the general view of the conditions precluding illegality of an act,...
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Strakošová, Kristýna. "Pojem a právní důsledky překročení mezí nutné obrany a krajní nouze." Master's thesis, 2015. http://www.nusl.cz/ntk/nusl-338009.
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The concept and legal consequences of the transgression of the limits of self-defense and necessity The object of this diploma thesis is criminal institute of self-defense and necessity and legal consequences of their transgression. These circumstances excluding the illegality release an act of person, who prevents a directly imminent danger or attack, from illegality as an element of the crime. We find the importance and indispensability of these institutes in possibility of use of self-help in favor of the protected interests, without a threat of penal sanction. This work is mainly focused on situations where legal conditions and limits of self- defense and necessity were transgressed, which caused their criminal liability. Even here it is desirable to apply more benevolent approach towards the offender than to other perpetrators of common crimes, because otherwise self-defense and necessity is considered a positive phenomenon. After a brief introduction, in the first part of this diploma thesis, the author deals with circumstances excluding the illegality in general and with the concept of illegality itself. In the second part, the author deals with the definition of the term and conditions of necessity and mainly focuses on explanation of the unclear and questionable elements of necessity. In...
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Baran, Zbyněk. "Pojem a právní důsledky překročení mezí nutné obrany a krajní nouze." Master's thesis, 2016. http://www.nusl.cz/ntk/nusl-347076.
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The concept and legal consequences of the transgression of the limits of self-defense and necessity The thesis is based on the criminal institutes of necessity and self-defense. The aim of the thesis is to analyse the concept of necessity and self-defence, set limits to those institutes, define cases of transgression of these limits and describe legal consequences of excess. The thesis is drawn as the analysis of current legislation regulating necessity and self- defense. Given that everyone can make use of these institutes, the thesis concentrates on the fact that the legislation in this matter should be comprehensible and expedient for the acting person and contains a thorough analysis of case-law. The comparative method is used to the lesser extent, Czech legislation is compared with legislation of some other European countries. A part of the thesis concentrates on the frequent de lege ferenda suggestions. In author's opinion, the enactment of these suggestions would help to promote legal certainty and extend the possibility to act in necessity and self-defense. The thesis is divided into an introduction, three main parts, which are further divided into chapters and subchapters, and a conclusion. Part one defines the concept of illegality as a requirement of commiting a crime, then the...
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CHIN, CHEN KEN, and 陳克勤. "Comparitive study on justifiable defense & necessity in criminal law between Taiwan and Mainland China." Thesis, 2008. http://ndltd.ncl.edu.tw/handle/9evn6h.
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Krejčíková, Radka. "Pojem a právní důsledky překročení mezí nutné obrany a krajní nouze." Master's thesis, 2013. http://www.nusl.cz/ntk/nusl-329802.
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The topic of this diploma thesis is the concept and legal consequences of excessive self-defence and necessity. The aim of the thesis is to introduce and describe the conditions of using these defences and to focus on issues of case law in connection with them. Criminal law is an essential part of everyday life. This diploma thesis focuses on analysis of all conditions imposed by Czech legislation as well as Irish legislation. It is composed of seven chapters and each chapter deals with different issues. The first chapter is an introduction to the whole thesis: it sets out aims and the methods used for achieving them. The second chapter deals with the definition of the concept of justification with the basic features of these circumstances and highlights the basic foundations for behaviour under self-defence or necessity. The third chapter is fully devoted to regulation of necessity, focusing on its basic conditions. Each condition is explained and described separately with references to the case law. One part of this chapter deals with the excess in behaviour under necessity and the following solutions in criminal trial. The fourth chapter deals with the concept of self-defence in the Czech Republic, defining it and analysing its basic conditions. Examples from the case are discussed and analysed...
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Theodor, Pavel. "Právní problematika sebeobrany - nutná obrana, krajní nouze." Master's thesis, 2020. http://www.nusl.cz/ntk/nusl-434329.
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Title Legal Issues of Self-Defense - Necessary Defense, Extreme Emergency. Objectives The aim of this work is to analyze the legal issues of self-defense. Explanation of the terms necessary defense and extreme emergency. Point out problems in interpretations. Point out the issue of self-defense of IZS members. Drawing conclusions. Methods The method used in the creation of this thesis is to analyze the widest range of literature that deals with the issue and the Criminal Code. Further description of findings and conclusion. Results Explaining the terms necessary defense and extreme emergency and clarifying the issue of self-defense. Key words Law, self-defense, necessary defense, issues, extreme emergency.
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Korál, Petr. "Sporné otázky nutné obrany v judikatuře." Master's thesis, 2011. http://www.nusl.cz/ntk/nusl-297130.
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55 10 Abstract Controversial Issues of Necessary Defence in Case Law In this thesis I focus on the problematic issues of necessary defence (self- defence) both from the point of view of case law (where available) and law theory (in areas that have yet to be decided by courts). The second chapter describes the position of necessary defence in the systematic of Czech criminal law and defines the legal institute of necessary defence itself. Necessary defence is one of circumstances that exclude criminal liability (excuses and justifications). The substance of necessary defence is the repulsion of an imminent or pending attack on interests protected by the Criminal Code. The attack must be unlawful and harmful to the interests of society. The action of the defender must not be utterly apparently inadequate to the manner of the attack. Also the action of the defender must be intensive enough to otherwise constitute a crime. The third chapter addresses the issues of basic components of necessary defence, that is, the attack and the defensive action. The harmfulness of an attack must be at least discernible. In regards to the unlawfulness of an attack, the criterion is objective unlawfulness, that is, behaviour is unlawful if it unduly threatens interests of others, without taking into consideration of the...
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Lenc, David. "Pojem a právní důsledky překročení mezí nutné obrany a krajní nouze." Master's thesis, 2012. http://www.nusl.cz/ntk/nusl-308255.
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1 Abstract THE CONCEPT AND LEGAL CONSEQUENCES OF THE TRANSGRESSION OF THE LIMITS OF SELF-DEFENCE AND NECESSITY As the name suggests, this Master's thesis examines the concept and legal consequences of transgression of the limits of self-defence and necessity. Self-defence and necessity, together with other circumstances excluding illegality, belong to the fundamentals of criminal liability. If all their conditions are fulfilled by some action, which would otherwise give raise to criminal liability, then these legal institutions exclude not only criminal liability, but also illegality of such action (i.e. such action is considered lawful). The purpose of the paper is to provide complex and understandable analysis of these two crucial legal institutions. The analysis is mainly focused on conditions of these legal institutions, which form their limits; determination of conditions which, if not met, constitute the transgression of the limits of self-defence or necessity, and content and cases of fulfilment or failure to fulfil these conditions. (Thus, the cases of the transgression of the limits of self-defence and necessity are examined.) After the analysis of such excesses, the thesis addresses specific issues connected with their legal consequences. The thesis is based on Czech legal regulation, namely the...
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Samples, Tim R. "International investment arbitration and the necessity defense : rulings and application from Argentina ; and, Of silence and defiance : a case study of the Argentine press during the Proceso of 1976-1983." Thesis, 2010. http://hdl.handle.net/2152/ETD-UT-2010-05-1486.
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This study examines the evolution of the modern necessity defenses in ICSID arbitration claims against Argentina arising from the 2001/2 economic crisis. To date, ICSID tribunals have been fractured in their approaches to Argentina’s necessity defenses. The high degree of inconsistency among the tribunals has provoked criticism and threatens to tarnish the legitimacy of the ICSID system, especially in Latin America. Recent developments indicate that a more coherent and legally sound alternative is emerging with a “two-step” approach that is moving away from reliance on customary international law and towards language in the bilateral investment treaty (BIT) between the Argentina and the United States. The BIT-based “two-step” approach is superior to the other two approaches available in terms of legal justifications and policy implications. Adherence to the “two-step” approach in future tribunals will allow for greater consistency, predictability, and stability for states and investors. Abstract: This study suggests that a weak press establishment was key among factors that enabled the excesses of the government’s response to domestic terrorism during Argentina’s most recent military dictatorship, the Proceso of 1976-1983, which resulted in gross human rights violations. The paper examines the role of the Buenos Aires Herald, which played an exceptional role in reporting violence during the Proceso and was the only major Argentine daily to take a confrontational editorial posture vis-à- vis the government. In researching this topic, the author used the archives of the Herald, primary source documents and press clips from the era, interviews with key figures in Argentine journalism, and a variety of academic sources on the issue. The paper considers political and historical factors as they shaped the Argentine media and set the stage for the events of the Proceso.text