Necessity appeal to situations when there is a threat to a legal good that can only be averted by interfiring with another legal good, thereby fulfilling the elements of a criminal offence. In contrast to self-defence, where there is a conflict between an unlawful attack and the defensive action (a conflict between law and unlawfulness), necessity involves a conflict between two legally protected goods: the one under threat, which is being protected, and the one that is harmed in the process of protecting the first. The important factor is the relationship between these two goods. In cases of conflict between goods of differing rank, precedence is unequivocally given to the one higher on the scale of legally protected goods. Legal theory has faced particular challenges in situations where goods of equal rank are in conflict, such as two lives. According to monistic theories, necessity can have only one legal effect, either excluding culpability (subjective theory) or unlawfulness (objective theory). The presenlty accepted differential theory attributes different legal effects to different situations of necessity.
The first Slovenian Criminal Code only envisaged one type of necessity, which excluded the unlawfulness of the act. Its successor, the Criminal Code (KZ-1), distinguished between necessity that excludes culpability and necessity that excludes punishability. This unusual and unique interpretation of the differential theory has been subject to numerous criticisms. Since the amendment KZ-1B, Slovenian criminal law now distinguishes between two forms of necessity: the fundamental justified necessity, which excludes unlawfulness, and the excusable necessity, which excludes the perpetrator’s culpability.
In judicial practice, the application of this institute is rare, as situations of necessity are exceptionally uncommon in real life. However, even in these rare cases, due to the strict conditions, necessity is almost never recognised in favour of the defendant.
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