Chapter 5 - Unlawfulness I

Question 1

What is the meaning of unlawful?

Answer 1

The mere fact that there is an act that corresponds to the definitional elements does not mean that the person who performs the act is liable for the particular crime. Therefore, satisfying the definitional elements is not the only general requirement for liability. The next step in the determination of liability is to enquire whether the act that complies with the definitional elements is also unlawful.

Question 2

What determines the lawfulness or the unlawfulness?

Answer 2

1. Grounds of justification
2. Legal convictions of society

Question 3

Explain grounds of justification

Answer 3

There are a number of cases or situations, well known in daily practice, where an act that corresponds to the definitional element is, nevertheless not regarded as unlawful. Unlawfulness is excluded because of the presence of grounds of justification.

Question 4

Explain the legal convictions of society

Answer 4

Conduct is unlawful if it conflicts with the boni mores or legal convictions of society

Question 5

What is private defence?

Answer 5

A person acts in private defense, and his conduct is therefore lawful, if he uses force to repel an unlawful attack that has already commenced or that that immediately threatens his or somebody else’s life, bodily integrity, property, or other interest that ought to be protected by the law, provided the defensive action is necessary to protect the threatened interest, is directed against the attacker, and is no more harmful than is necessary to ward off the attack.

Question 6

What are the requirements of private defence?

Answer 6

1. Requirements of the attack:
   The attack must be unlawful, against interests that ought to be protected, and threatening but not yet completed.
2. Requirements of the defense:
   The defensive action must be directed against the attacker, be necessary, stand in a reasonable relationship to the attack,, and be taken while the defender is aware that he is acting in private defense.

Question 7

List the factors relevant to deciding whether there was a reasonable relationship between attack and defence.

Answer 7

1. The relationship between the parties
2. The gender of parties, their respective ages and physical strengths
3. The location of the incident
4. The nature of weapon used in the attack
5. The nature, severity and persistence of the attack
6. The nature and severity of any injury likely to be sustained in the attack
7. The means available to avert the attack
8. The nature of the means used to offer the defense
9. The nature and extent of the harm likely to be caused by the defense