Sąvokos „trečiasis asmuo“ reikšmė esant būtinajam reikalingumui

Abstract

The legal definition of necessity – since its inclusion onto the Criminal Statute of 1845 till the Republic of Lithuania Criminal Code of 2000 – never referred to a party that sustains injury in the circumstances of necessity. Such a consistent line of the legislature, however, did not facilitate generating a well-reasoned viewpoint in the theory of criminal law.
Scholars of criminal law sought in many ways to identify and define the parties who sustain harm in necessity. The definitions suggested by scholars are either more or less acceptable.
In Soviet era, one notion – “inflicting harm on the third party” – started to dominate, however. Although lacking in substantial reasoning, this definition became established in most of textbooks and commentaries on criminal code and in other scientific texts.
This article specifically deals with the analysis of the notion “inflicting harm on the third party”. The analysis of this issue of necessity is based on historical, linguistic, logical, analytical and other approaches.
In a summary of the different viewpoints of scholars in criminal law literature, the author indicates two major streams: scholars who support the opinion that the institution of necessity must include harm done to a third party; and scholars who purport the theory of necessity that excludes harm inflicted on a third party. In research of scientific works the author finds that the criminal law theory of Lithuania lacks any profound analysis of the notion “harm inflicted on a third party”. In addition, the Lithuanian scientists of criminal law a priori support the viewpoint of the first aforementioned scholars’ group.
The author backs the opinion of scholars in the second group. On the other hand, he focuses on the study, classification and analysis of the arguments presented by the first group. The author provides logical arguments and cites practical cases to prove that the rationale of the latter group is artificial and unreliable. Nevertheless, the author does not idealize the arguments presented by the second group, indicating that they lack precision. The author has therefore worked out three provisions that, in his opinion, prove that highlighting “harm inflicted on the third party” as inherent element of the necessity notion is artificial, theoretically unfounded and unnecessary. It is pointed out in the article that the criminal law systems of Western European countries and the USA do not include any provisions regarding a party that sustains injury in necessity.
This posture of European and US scholars has the only implication – any individual may sustain harm done in necessity.
Furthermore, considered in this article is establishing the notion “the third party” in criminal law; the author cites a parallel existing between the notion of “a third party” in both criminal and civil law.