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Legal Concept of Necessity


Understanding the Legal Concept of Necessity

The legal concept of "necessity" has been a subject of debate among jurists in courts. Despite differences, there are common scenarios recognized by the majority of opinions.


Principles of Differentiation Theory:

Firstly, the Differentiation Theory is applied, allowing the recognition of a justified necessity state that exempts from criminal responsibility.

Explicitly, the Penal Code acknowledges this, considering the conduct legally correct and excluding culpability. There is no ambiguity in this regard.


Criteria for Justifying Necessity:

The majority view understands that necessity is justified when the individual harming a legal interest is under extreme personal tension. In such situations, the law could not reproach prioritizing one's own interests over others'.

This aligns with the application of the "Theory of the Carneades' Plank," where two shipwreck survivors cling to a single plank that can only support one. One of them kills the other to save their own life.


Necessity in the Penal Code:

Necessity is addressed in the Penal Code under the chapter titled "Causes that exempt from criminal responsibility."

Article 20.5th stipulates that criminal responsibility is exempted:

5th. The one who, in a state of necessity, to avoid harm to oneself or others, injures another person's legal interest or infringes a duty, provided the following requirements are met:

First. That the harm caused is not greater than that which it seeks to avoid.

Second. That the state of necessity was not intentionally provoked by the individual.

Third. That the individual in need does not, by their profession or position, have an obligation to sacrifice themselves.


Conditions for Necessity: These conditions must coexist to establish a state of necessity for determining criminal responsibility.

  1. The harm caused should be less than that which it seeks to avoid.

  2. The necessity should not have been intentionally provoked by the individual.

  3. The individual in need should not have a professional obligation to sacrifice themselves.


Consequences of Not Meeting Conditions:

Failure to meet these conditions results in the necessity being considered a mitigating circumstance.


Attestation of Necessity:

To argue necessity in a violation, besides the mentioned conditions, the court will consider other factors. One of them is the imminence of the real and serious harm the violation prevented.

Moreover, it will be assessed whether resolving the conflict through lawful means in time to prevent the problem was impossible. This inevitability implies that, in case of inaction, the harm avoided would have occurred.


Economic Necessity in Legal Context:

Especially in times of crisis, situations where economic necessity is argued as an exemption from criminal responsibility often appear in courts.

However, jurisprudence is cautious about admitting economic necessity as a general exemption. It is typically not accepted as an exemption in cases like drug trafficking, where the harm to public health outweighs any economic problems of the offender.

Cases of economic necessity being admitted as an exemption or mitigating factor usually involve extreme financial distress, accompanied by immediacy and urgency.


Judicial Evaluation:

Judges' assessments of necessity require an extremely objective and analytical approach. A mistake could result in necessity being mistakenly recognized as an exemption from criminal responsibility.

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