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Grounds for Excuse. Special Reference to Superior Orders

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Chapter Summary

The grounds for excuse, unlike the grounds for justification, do not affect the unlawfulness of attack. As a result, third persons may resort to self-defence in response to unlawful attack and those individuals who assisted the perpetrator to launch the unlawful attack will be criminally liable. Art. 3i(i)(d) RS provides for duress as third ground for excuse Art. 3i(i)(d) RS provides for duress as a third ground for excuse. The key element of this ground for excuse is that the perpetrator must launch the unlawful attack acting under duress, i.e. giving in to the psychological pressure, in order to avoid the threat of harm. From a subjective perspective, this ground for excuse requires the perpetrator's awareness that his unlawful attack constitutes a suitable, necessary and not wholly disproportionate response to the threaten harm. Furthermore, the perpetrator must not intend to cause greater harm than the one he seeks to avoid.

Keywords: grounds for excuse; perpetrator; self-defence; superior orders



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