避险过当若干问题探讨

On some questions of the necessity over limit

避险过当是指避险人实施的避险行为超过法定必要限度的情形。避险过当的主观方面只能由过失或间接故意构成,不能由直接故意构成。避险过当的客观要件主要是正确理解“损害”的含义。就质而言,“损害”仅指有形的、物质性损害;就量而言,“损害”应具有严重的社会危害性;就法律形式而言,“损害”应具备法定性。

The necessity over limit is that the necessity goes beyond the indispensable limit provided by law. It＇ s subjective element can only be made of negligence or indirect intention instead of direct intention. It＇ s objective element is mainly dealt with the definition of damage. As to quality, the damage is only the physical damage As to quantity, the damage should have grievous harm to society. As to the form of law, the damage should be seen as provided by law.