FRINK Linked Data Fragments server

Matches in SemOpenAlex for { <https://semopenalex.org/work/W628343419> ?p ?o ?g. }

• W628343419 abstract "A person who is being subjected to a crime has, according to Chapter 24 Section 1 Brottsbalken, a right to defend himself. Naturally the right to self-defence must have some kind of limit. Therefore the provision states that the violence used cannot be “clearly indefensible”Even though an offender has exceeded the right to self-defence he or she can still be excused according to Swedish law. Chapter 24 Section 6 Brottsbalken states that the offender should not be sentenced if the circumstances were such that the offender had ”difficulties in coming to his/her senses. The main purpose of this thesis is to examine and clarify the meaning of this necessary condition in a self-defence context. Furthermore it is examined if the current regulation is appropriately constructed.The meaning of the expression is not specified in the text of the law. Legislative history shows that both objective and subjective factors (including both individual characteristics and more temporary subjective states of mind) are relevant to the assessment. Furthermore legislative history states that the assessment should be based on how the offender experienced the situation.Legislative history provides relatively clear instructions on what components to be given importance in the assessment of excess. These factors have been interpreted and developed through case law. Case law is also the main object of this thesis. The study is mainly based on relevant cases from the Supreme Court, but a number of cases from the Courts of Appeal are also analyzed. Although legislative history stresses that subjective factors should be considered in the excess assessment, the courts tend to attach relatively little importance to these factors. The courts do not bring up individual characteristics such as nervousness, anxiety or hot temper in any of the examined cases. More often the courts take temporary subjective states of mind such as fear, stress and drowsiness into account. However, I believe that these circumstances are not considered to the extent that the legislature intends. This is particularly evident in NJA 1977 s. 655 and NJA 2005 s. 237, where the Supreme Court seemingly ignored the offenders fear. In the latest case from the Supreme Court concerning the area in question, NJA 2009 s. 234, the subjective circumstances, however, were crucial to the verdict of acquittal. I belive that the case can be seen as a statement from the Supreme Court that the subjective circumstances should be given greater importance than before.In the examined cases the courts tend to attach great importance to objective circumstances and in particular the time that the defendant had at his disposal. The aspect of time is often considered to be more important than the nature of the attack and the subjective circumstances. NJA 2005 s. 237 shows that the assessment of the time that the offender had at his disposal should be done in a rigorous manner. Another conclusion that can be drawn from that case is that the assessment is affected by the fact that the offender was prepared for the attack in advance. In such cases the Supreme Court seems to suggest that the attack cannot be seen as unexpected.Even though the legislative history emphasizes that the assessment should be based on the defendant's point of view, this is in my opinion, not always done in practice. One way of solving this problem would be to explicitly state in the law that the assessment of if the offender had difficulties in coming to his/her senses should be made from the defendant's perspective. Another conclusion to be drawn from the text of law, the legislative history and the case law, is that there is a relatively large void to assess the relevant circumstances in different ways. The assessments also differ to a large extent between the courts both in terms of which factors that are considered and how these circumstances are weighed against each other. I believe that case law is to some extent inconsistent and even arbitrary. This is problematic since it causes deficiencies in the predictability, a principle that is very important for the individual and for the rule of law.The inconsistent and arbitrary application of the excess provision is, according to my opinion, at least partly due to the vague formulation of the law. Therefore this thesis proposes a review of excess regulation. The purpose of the revision would be to in the text of the law define the variables that are relevant to the assessment." @default.
• W628343419 created "2016-06-24" @default.
• W628343419 creator A5086258984 @default.
• W628343419 date "2011-01-01" @default.
• W628343419 modified "2023-09-26" @default.
• W628343419 title "Nödvärnsexcess - En studie av domstolarnas tillämpning av rekvisitet svårligen kunde besinna sig" @default.
• W628343419 hasPublicationYear "2011" @default.
• W628343419 type Work @default.
• W628343419 sameAs 628343419 @default.
• W628343419 citedByCount "0" @default.
• W628343419 crossrefType "journal-article" @default.
• W628343419 hasAuthorship W628343419A5086258984 @default.
• W628343419 hasConcept C144024400 @default.
• W628343419 hasConcept C15744967 @default.
• W628343419 hasConcept C166957645 @default.
• W628343419 hasConcept C17744445 @default.
• W628343419 hasConcept C199539241 @default.
• W628343419 hasConcept C2777553895 @default.
• W628343419 hasConcept C2778272461 @default.
• W628343419 hasConcept C2778449503 @default.
• W628343419 hasConcept C2779343474 @default.
• W628343419 hasConcept C2780876879 @default.
• W628343419 hasConcept C542102704 @default.
• W628343419 hasConcept C83009810 @default.
• W628343419 hasConcept C95457728 @default.
• W628343419 hasConceptScore W628343419C144024400 @default.
• W628343419 hasConceptScore W628343419C15744967 @default.
• W628343419 hasConceptScore W628343419C166957645 @default.
• W628343419 hasConceptScore W628343419C17744445 @default.
• W628343419 hasConceptScore W628343419C199539241 @default.
• W628343419 hasConceptScore W628343419C2777553895 @default.
• W628343419 hasConceptScore W628343419C2778272461 @default.
• W628343419 hasConceptScore W628343419C2778449503 @default.
• W628343419 hasConceptScore W628343419C2779343474 @default.
• W628343419 hasConceptScore W628343419C2780876879 @default.
• W628343419 hasConceptScore W628343419C542102704 @default.
• W628343419 hasConceptScore W628343419C83009810 @default.
• W628343419 hasConceptScore W628343419C95457728 @default.
• W628343419 hasLocation W6283434191 @default.
• W628343419 hasOpenAccess W628343419 @default.
• W628343419 hasPrimaryLocation W6283434191 @default.
• W628343419 isParatext "false" @default.
• W628343419 isRetracted "false" @default.
• W628343419 magId "628343419" @default.
• W628343419 workType "article" @default.