Būtinosios ginties taikymo problematika : ribos ir tariamoji būtinoji gintis

LTReikšminiai žodžiai: Aplinkybės, šalinančios baudžiamąją atsakomybę; Baudžiamoji teisė; Būtinoji gintis; Būtinosios ginties taikymo problemos; Nusikalstama veika; Circumstances, excluding criminal liability; Crime; Criminal Law; Legitimate defense; Necessity Defence; Of self-defense application problems; Selfdefence.

ENInstitute of the necessity defence is socially valuable and legitimate if it fulfils all the conditions which are regulated by law. It means that the infringement must be real, self-evident and dangerous. Also it means that the harm can be caused only to the assailant, it can be caused only in the situation of dangerous infringement and boundaries of the necessity defence cannot be exceeded. Infringement may be considered dangerous only if it is made in action. When the court must decide if the infringement is dangerous or not it is important to estimate all the circumstances: the intensity of the infringement, the tools, which had been used to attack, the amount of the possible harm and the proportion of the power of the assailant and the victim. It is important to point out, that the necessity defence does not exist in the mutual fighting unless one of the participants tries to change the way of fighting and seriously injure another or one of the participants wants to end up the fighting but another wants to continue it. The institute of the necessity defence is self-evident when the dangerous infringement has already begun or it is going to begin immediately.The last condition of the legitimacy of the institute of necessity defence – the reality of the infringement – means that it must have the objective existence in reality, not in the imagination of man. One of the common questions of the institute of necessity defence is whether the boundaries were exceeded or not. Some problems also exist in the situations when the necessity defence does not exist, but the human being according to the situation made a mistake. These situations are called the virtual necessity defence. Above-mentioned problems exist because of the abstractedness of the rules of law and the lack of the literature of law in a sphere of necessity defence. [From the publication]