Justified risk in criminal law. Article 41 of the Criminal Code of the Russian Federation

In criminal law, justified risk as an institution appeared relatively recently. It was not enshrined in pre-revolutionary legislation.

In the 20s In the twentieth century, the need arose to apply reasonable risk in criminal law. Both in legislation and in practice this concept has begun to be used quite widely. Gradually, risk began to be considered as a socio-legal category.

The importance of the institute

The need to consolidate the concept of reasonable risk in the criminal legal system was undeniable. The fact is that neither legislation itself nor its individual institutions can appear on their own. They always act as the results of certain social actions.

New needs and interests of society, not provided for by law, must receive regulatory regulation. The absence of legal provisions on the basis of which a court or other authorized body could solve the problem of applying a separate rule in a specific legal relationship leads to the emergence of gaps. They must be eliminated.

The introduction of the institution of justified risk into criminal law is associated with the development of science and technology, the emergence of new production operations, technologies, and the implementation of various scientific experiments. The negative consequences of all these phenomena should have received a proper legal assessment. It was necessary to understand whether they were the product of deliberate decisions or the negligent attitude of subjects towards the process of organizing and implementing certain events. Based on the legal assessment, in turn, one can draw conclusions about the validity of holding persons accountable.

The concept, essence and significance of the institution of justified risk in Russian criminal law

 The article raises the problems of defining the concept, meaning and limits of the institution of justified risk in criminal law.

Key words: justified risk, socially useful goal, circumstances excluding the criminality of the act, limits of justified risk.

Justified risk, as one of the circumstances excluding the criminality of an act in Russian criminal law, is an institution aimed primarily at ensuring justice. And in order to achieve in the process of law enforcement the main goal of criminal law - the protection and protection of human rights and freedoms, it is most important to determine the limits of this institution.

Social relations regulated by criminal law are infinitely extensive, and to determine the limits of justified risk, it is necessary first of all to proceed from the essence of this concept. To do this, first of all we turn to the etymology and meaning of the words “reasonable” and “risk”.

Thus, the word “risk” is borrowed from the French “risque” and the Italian “risico”, which in turn go back to the Greek ῥιζικόν - “cliff”, ῥίζα - “foot of the mountain”, and in its original meaning meant “maneuver between the rocks” [ 1, p.553]

In the dictionary of S. I. Ozhegov and N. Yu. Shvedov, the word risk is designated as the possibility of danger, failure; acting at random in the hope of a happy outcome [2, p. 602].

The legislator defines the word risk in the Federal Law of December 27, 2002 N 184-FZ “On Technical Regulation” as the likelihood of causing harm to the life or health of citizens, the property of individuals or legal entities, state or municipal property, the environment, the life or health of animals and plants with taking into account the severity of this harm [3].

In our opinion, the meaning of risk is most succinctly defined in GOST R 51897–2002 “Risk Management. Terms and definitions" as a combination of the probability of an event and its consequences [4].

Thus, risk can most accurately be defined as a combination of an act and the likelihood of its negative consequences.

The adjective “reasonable” in addition to “risk” in turn means motivated, thorough, supported by serious arguments.

The Criminal Code of the Russian Federation determines that a risk is recognized as justified if the specified goal could not be achieved by actions (inactions) not related to the risk and the person who allowed the risk took sufficient measures to prevent harm to the interests protected by criminal law [5, p. 20].

And despite the fact that the institution of justified risk is enshrined in the Criminal Code of the Russian Federation, its formulation is quite vague and in the theory of criminal law there has not yet been a consensus on what should be understood as justified risk, which also causes problems of law enforcement in practice.

Thus, A. S. Shurmudov proposes to understand justified risk as actions (inaction) committed with a socially beneficial purpose that resulted in harm to legally protected interests, if the set goal could not be achieved by other actions not related to risk, and the person took all possible and measures to prevent harm depending on it [6, p. 15].

S. S. Zakharova defines justified risk as an objectively necessary, prepared, permissible act of a person, aimed at achieving a socially useful goal, implemented in a situation of uncertainty with the possibility of choosing an alternative course of behavior, which, despite the countermeasures taken, caused harm to the interests protected by criminal laws [7, p. 21].

A. I. Rarog believes that a justified risk represents harm to the interests of an individual, society, or state protected by criminal law, if the person acted to achieve a socially useful goal [8, p. 94].

For a holistic understanding, one should also note the necessary conditions contained in the criminal law, which will indicate the legality of a person’s actions, and the harm caused by his actions will not be considered criminal.

Thus, in order to recognize the actions of a person committed at a reasonable risk, the following conditions must be met:

1) the presence of a socially useful purpose;

2) the impossibility of achieving it without risk;

3) the person who committed the risk takes sufficient measures to prevent harm to the interests protected by criminal law;

4) the absence of a threat to the lives of many people, the threat of an environmental disaster or a public disaster.

Meanwhile, what constitutes a “public goal” and “sufficiently taken measures” within the framework of a justified risk, the legislator did not explain, and therefore, there are certain problems in the application of this institution.

Having analyzed judicial practice, it seems that the institution of justified risk is rarely used in practice, while the courts understand justified risk and its limits in different ways. The bodies administering justice did not have a common view on this institution. Largely, of course, due to its rather low applicability. However, despite this, there are decisions where the court recognized the actions of a person committed within the framework of a reasonable risk and released the person who caused the harm from criminal liability.

Thus, the Zheleznodorozhny District Court of Khabarovsk acquitted P., who was accused of committing a crime under Part 3 of Article 264 of the Criminal Code of the Russian Federation. He, being an inspector of the traffic police regiment of the traffic police of the State Traffic Safety Inspectorate of the Ministry of Internal Affairs of Russia, performing his official duties for traffic control as part of a squad in the above patrol car, chasing the violator’s car, exceeded the permitted speed of 60 km/h to 137 km/h, lost control of the vehicle and flew out behind the roadway and crashed into a light pole, as a result of which it caused serious harm to the passenger, from which the victim died at the scene of the incident.

The court recognized that the victim was harmed to interests protected by criminal law, under conditions of justified risk to achieve a socially useful goal, and therefore his actions do not constitute a crime.

Having examined the case materials, the court found that P. pursued the car in order to stop the traffic violation, as well as to prevent possible harm caused as a result of such violations. The court recognized this goal as socially useful, since, in the court’s opinion, it was associated with the prevention of harm to an unlimited number of persons by a source of increased danger.

In addition, the court noted that P.’s actions related to speeding were a justified deviation from traffic rules, since they were justified by the performance of an urgent official task (pursuit) [8].

This verdict was upheld by the appellate court [9].

In conclusion, I would like to note that the rather “widely” defined definition of justified risk in the criminal law using evaluative concepts makes it difficult to apply this institution in practice, does not allow the formation of a unified position within the limits of this institution and does not make it possible to establish a sustainable practice of its application.

Literature:

1. Vasmer M. Etymological dictionary of the Russian language: In 4 volumes: Transl. with him. — 3rd ed., stereotype. - M.: Azbuka-Terra, 1996. - T. 3. - 832 p.
2. Ozhegov S.I., Shvedova N.Yu. Explanatory dictionary of the Russian language. Russian Academy of Sciences, Institute of Rus. lang., Russian Cultural Foundation. — 2nd ed., rev. and additional - Moscow: Az, 1994. - 907 p.
3. Federal Law No. 184-FZ of December 27, 2002 “On Technical Regulation” adopted the State. Duma on December 15, 2002, approved by the Federation Council on December 18, 2002, as amended. from (ed. from 12.22.2020] // Official Internet portal of legal information: state legal information system. -URL:https://student2.consultant.ru/cgi/online.cgi?req=doc&ts=195458925609630231070898476&cacheid=114C268AB9822CD4A9D561 3E19EAE9D3&mode =splus&base=NBU&n=372107&rnd=0.5496628564728776#6aeg17aiwo8 (date of access: 03/20/2021).
4. “GOST R 51897–2002. State standard of the Russian Federation. Risk management. Terms and definitions" (adopted and put into effect by Resolution of the State Standard of Russia dated May 30, 2002 N 223-st) // Consultant Plus: reference legal system - URL: https://www.consultant.ru/cons/cgi/online .cgi?req=doc&base=OTN&n=9911 (date of access 03/25/2021)
5. Criminal Code of the Russian Federation: Federal. Law of June 13, 1996 No. 63-FZ: adopted by the State. Duma May 24, 1996: approved by the Federation Council June 5, 1996: [as amended. from 02.24.2021] // Official Internet portal of legal information: state. legal information system. -URL:https://pravo.gov.ru/proxy/ips/?docbody=&nd=102041891&intelsearch= %F3 %E3 %EE %EB %EE %E2 %ED %FB %E9+ %EA %EE %E4 %E5 %EA %F1(access date: 03/20/2021)
6. Shurdumov A. Yu. Justified risk as a circumstance excluding the criminality of an act: abstract of dissertation. ...candidate of legal sciences. M., 2007. 24 p.
7. Zakharova S.S. Justified risk in the criminal law of the Russian Federation: abstract. dis. ...Ph.D., Ryazan, 2005. 26 p.
8. Commentary on the Criminal Code of the Russian Federation / ed. A. V. Brilliantova. T. 1. M., 2015. - 103.c
9. Verdict of the Zheleznodorozhny District Court of Khabarovsk in case No. 1–456/2015 // Zheleznodorozhny District Court of Khabarovsk: official website. — URL: https://zheleznodorozhny—hbr.sudrf.ru/modules.php?name=sud_delo&srv_num=1&name_op=doc&number=3159629&delo_id=1540006&new=0&text_number=1 (access date: 03/20/2021)
10. Appeal resolution of the Khabarovsk Regional Court dated September 24, 2015 in case No. 22–3227/2015 // Khabarovsk Regional Court: official website. — URL: https://kraevoy—hbr.sudrf.ru/modules.php?name=sud_delo&srv_num=1&name_op=doc&number=3346321&delo_id=4&new=4&text_number=1 (date of access: 03/20/2021).

Interpretation of the concept

Despite the fact that justified risk is currently officially established in criminal law, lawyers do not have a common opinion on its definition. Let's consider some approaches to interpretation.

Professor A.I. Rarog believes that a justified risk represents damage to the interests of the state, the individual, or society by an entity acting to achieve socially beneficial goals. At the same time, the scientist draws attention to the fact that the criterion of reasonable risk is the person’s compliance with generally accepted precautions. Rarog also says that the scope of risk-related activities is changing significantly due to the constant complication of the professional activities of the population.

Professors Krasikov and Ignatov do not seek to accurately determine the signs of justified risk. In their reasoning, they refer to the provisions of Article 41 of the Criminal Code and judicial practice. At the same time, scientists point out that previously the criminal legal assessment of damage caused by a reasonable risk was carried out within the framework of criminal arrogance.

About sufficient precautions

One of the mentioned criteria for justified risk is taking all possible measures to prevent negative consequences. The legislator considers these measures sufficient.

However, this criterion is to a certain extent subjective.

The law does not explain what exactly needs to be understood as sufficient measures, or which measures are considered to satisfy this condition. Therefore, it remains up to the judges to decide whether the risk-taker has taken all actions that should help prevent undesirable results.

We can definitely say that the announcement of an upcoming event, which is risky by nature, is a mandatory measure. This event is intended to alert members of the community to possible danger.

In order to prove that all possible safety measures were taken, you can provide the court with:

• calculations, while it is advisable to provide their presentation in a form that is understandable even for a non-specialist in this matter;
• certificates of notifying people;
• papers signed by the experiment participants, proving that all conditions and the possibility of negative consequences for them were explained to them;
• documents confirming that any work has been carried out in order to minimize possible harm;
• witness statements, etc.

Any evidence is important here, since the court will be guided by its considerations about the sufficiency of the measures taken.

Modern legislation

Long-term disputes among scientists ended in 1996 with the adoption of a new edition of the Criminal Code. Taking into account the results of a comparative analysis of the relevant provisions of the legislation of a number of foreign countries, the theoretical foundations of civil law, sociology and psychology, experts created a special legal structure regulating the legality of justified risk. It is enshrined in Article 41 of the Criminal Code.

According to Part 1 of this norm, causing damage to protected interests will not be considered a crime if it was aimed at achieving socially useful goals. Part 2 of the article indicates under what conditions the risk is considered justified. This is acceptable if the stated socially beneficial goal could not be achieved through actions/inactions not associated with risk. At the same time, the entity that caused the damage took all necessary and sufficient measures to prevent harm to the interests protected by criminal law.

In the 3rd part of Art. 41 of the Criminal Code of the Russian Federation establishes that a risk cannot be considered justified if the actions/inaction of a person were obviously associated with a threat to the lives of a large number of people, the environment, or could cause a public disaster.

Responsibility for unreasonable risk

When there are no conditions for the legitimacy of a justified risk, a person is liable for the harm caused on a general basis, but it should be borne in mind that guilt for the criminal result manifested in the form of negligence. This is due to the fact that the risk-taker relies on the precautions he has taken, which, in his opinion, should prevent the onset of adverse consequences. According to paragraph “g” of Part 1 of Art. 61 of the Criminal Code, the commission of a crime in violation of the conditions of the legality of a justified risk is subject to consideration as a circumstance mitigating the punishment.

Features of the Institute

The legal nature of justified risk as a circumstance excluding the criminality of an act is considered in the course of analyzing the factors influencing the action of the subject. Legal publications provide different classifications of them. One of them, very controversial, was proposed by I. I. Slutsky. He identified three groups of circumstances:

1. Vividly expressing the social utility and legality of behavior. These include: extreme necessity, execution of orders, necessary defense, detention of a criminal, performance of other professional or official duties.

2. Actions that exclude danger and punishability, but at the same time do not make it useful. Here we are talking about voluntary refusal, the consent of the victim, the insignificance of the violation.

3. Force majeure and physical coercion.

As you can see, there was no room for justified risk in any group. Based on the logic of the above classification, it is recognized as a permissible act. In this case, social utility is minimized by causing damage without achieving the stated goals.

According to V.N. Kudryavtsev, justified risk should be included in the classification of different models of actions/inactions of a person. According to the author, it should be considered as the lawful behavior of the subject, consisting in the implementation of guaranteed rights. A similar approach is followed by Yu. V. Baulin and A. A. Chistyakov. At the same time, the latter draws attention to the fact that causing damage to protected interests is not of a socially beneficial nature.

If we talk about the modern world, then not every action that society approves is lawful behavior from a legal and moral point of view.

About unreasonable risk

Article 41 of the Criminal Code of the Russian Federation, in parallel with justified risk, considers situations when the risk must be considered unreasonable. Moreover, it should be noted that criminal law does not use the combination “unreasonable risk” in its terminology base. But part 3 of the forty-first article allows us to draw a conclusion about what an unreasonable risk in Russian criminal law is.

It goes without saying that failure to comply with the above conditions, due to which actions are assessed as a type of risk marked as justified, makes the enterprise unjustifiably risky. Accordingly, the subject will bear full criminal liability for violation of legally protected norms that occurred as a result of the risk.

In addition, the legislator names three more factors, the presence of which allows us to say that a person’s actions pose an unreasonable risk:

1. Initially, it was known that the actions taken would lead to the death of many people.
2. The act suggested the possibility of disaster for the environment.
3. The risk was associated with the possibility of disaster for the entire society.

The presence of at least one of these conditions determines the recognition of the actions taken as unjustified.

The first point usually requires some explanation. Indeed, how many people can be classified as “many people”. Some jurists tend to think that the word many implies a number greater than one. That is, the expected death of two people also makes the risk unreasonable.

An important criterion here is awareness and originality. That is, the subject, even before carrying out the act, assumed such consequences, their high probability. But at the same time, he thoughtlessly thought that they would not come.

He realizes that his action is unlawful. But it is guided by other criteria.

The question of what is considered an environmental disaster is quite clear:

• oil spill over a large area;
• radiation spread;
• forest fires that engulfed vast areas, etc.

Social disasters include such events when:

• diseases spread;
• many people remain homeless;
• many are brought suffering and hardship, etc.

The possibility of such consequences cannot be substantiated by any other discoveries in the field of science or production.

Distinctive features

Justified risk as a circumstance excluding the criminality of an act is different:

· social orientation;

· objective necessity;

· alternativeness;

· compulsion;

· uncertainty of achieving the stated goals and causing damage when making a decision;

· admissibility;

· preparedness;

· harmfulness;

· legality.

All of the above signs can be divided into those related to the decision-making stage and the stage of committing the act.

Summarizing the above, we can formulate the following definition: justified risk should be considered an objectively necessary, permissible, prepared action/inaction of the subject, aimed at realizing socially useful goals, committed in a situation of uncertainty in the presence of an alternative choice of behavior model, which, despite the measures taken, caused damage to the interests protected by criminal law.

Conditions of legality

Different researchers have different definitions of the circumstances under which a risk can be considered reasonable. The main ones, however, are reflected in Article 41 of the Criminal Code. The conditions under which the risk will be considered justified are:

1. The focus of action/inaction on the implementation of socially useful goals.

2. Impossibility of solving the task without risk.

3. The obligation of the entity that caused the harm to take necessary and sufficient measures to prevent it.

4. Committing an act within the limits permitted by law.

Another condition is given in the legal literature. The person’s action/inaction must correspond to the current level of scientific and technological progress.

Pre-risk measures

The legislator, explaining the essence of justified risk, also pointed out the need to observe a number of other points, which should serve as a kind of cheat sheet for those who decide to undertake a risky undertaking:

1. In order for the risk to be recognized as justified, it is necessary to prove that the person who violated the law had no other ways to achieve the expected result.
2. The tester is obligated to strictly follow the recommendations and regulations existing in his area of ​​work.
3. Those at risk took all necessary actions to ensure that negative consequences did not occur or occurred with minimal harm.

The law requires compliance with all of the above factors.

When alternative less dangerous methods were available to achieve a similar result, but they were not used by the subject, the risk would not be considered reasonable. Then, even if other conditions are met, the situation is generally considered to fall within the scope of criminal law regimes.

Criminal liability, which inevitably occurs in the event of an unreasonable risk, corresponds to the harm caused by the subject to society or an individual or group of people.

An example of a violation of the first criterion can be, for example, a situation where a designer can test his device using a robot, but for greater effect or for other reasons, he suggests doing it to a person. As a result, the latter dies or receives significant injuries. Of course, criminal law does not recognize such a risk as justified.

Most often, in those areas where human activity related to his work is carried out, there are regulations that determine how one should act in certain situations. These instructions should not be neglected by a subject willing to take risks.

If the risk is aimed at trying to refute established regulations, the subject must be guided by accurate calculations and calculations.

Composition of risk

Within the framework of criminal legal theory, when analyzing a particular phenomenon, its object is first considered, then its subject, and then its key features are identified.

The objective aspect of justified risk is:

· action or inaction involving damage;

· measures aimed at preventing harm;

· negative consequences arising in connection with the commission of the act;

· connection between all elements.

Optional features are the conditions (settings) in which the subject acts, the method, place and time of the act.

The subjective aspect is characterized by:

· a person’s attitude towards his behavior in specific circumstances and consequences;

· motive and purpose of the act.

In what cases will the risk not be justified?

The legislation of the Russian Federation provides that if there is a threat to the lives of two or more people, then the risk cannot be justified. This does not apply to cases such as:

• natural disasters;
• release of hostages;
• floods;
• fires;
• earthquakes;
• destruction of residential buildings;
• epidemics.

This does not include environmental disasters that resulted in mass death of animals, plants, or deterioration of environmental conditions. The consequences of this affect people’s health and their living conditions. Such a risk cannot be considered justified.

All of the above makes it clear that the goal of reasonable risk does not have specific concepts. Therefore, it is impossible to say unambiguously whether a person who has committed a justified risk will be exempt from criminal or administrative liability. Only the court establishes the circumstances and conditions that make it possible to make an appropriate decision.

Classification

Types of justified risk in criminal law are distinguished depending on:

1. From the absence/presence of a prepared solution.

2. Opportunities to choose an alternative behavior model.

3. The nature of the decision made to commit a dangerous action/inaction. On this basis, corrective and individual risk are distinguished.

4. The person’s interest in achieving the goal.

5. Qualitative and quantitative indicators that require assessment and forecasting.

6. Degrees of consistency of behavior with outside entities.

7. Number of persons participating in the event.

8. Amount and nature of damage.

9. The duration of the period between the commission of the act and the onset of consequences.

10. Type of activity.

Of course, other criteria may be used.

Crimes within a group

The Plenum also included in the resolution an explanation that a business crime cannot be considered committed “as part of a group of persons” if the entrepreneur acted through employees subordinate to him. A crime in which two or more business entities participated can be considered a group crime. “Other employees of the organization cannot be recognized as co-perpetrators of these crimes,” the Plenum explained.

In this regard, the Supreme Court recommended that judges, when considering cases of crimes in the field of business and other economic activities committed as part of a group of persons, clarify the role of each of the defendants. “For a legal assessment of such crimes <...> in a court hearing the following must be established: the presence of each accomplice with intent to commit a crime as part of a group of persons; the existence of a preliminary agreement between them on the joint commission of actions (inaction) that constitute the objective side of the crime; direct participation of everyone in performing all or part of these actions.”

Justified risk situations: examples

Depending on the presence/absence of a prepared solution, risk is divided into planned and situational.

In the first case, the mechanism for making a decision on a specific action will be fully implemented:

· a goal is set that is perceived as significant and socially useful;

· the situation is assessed;

· a behavior model is selected;

· information about the expected consequences is analyzed.

Examples of planned risk are experiments in law enforcement (operational investigative in particular) and medical activities.

Situational risk is also called sudden. It takes place in conditions where the subject is limited in time and cannot always make a decision. For example, when detaining a dangerous criminal, police officers used weapons.

Interest of a person in achieving a goal

Based on this criterion, justified risk can be divided into mediated and non-mediated. The first occurs when the subject is interested in implementing the task and achieving the stated socially useful goal. An example is a developer testing a new machine design.

With indirect risk, there is, accordingly, no interest. For example, law enforcement officers performing their duty in an emergency situation, or a doctor performing surgery in an extreme situation do not have it.

Consistency with third parties

A justified risk may be the result of a person’s independent decision. In such cases, the person accepts responsibility for the possible consequences.

In many situations, however, there is a need to coordinate actions with those interested in the outcome. This happens especially often in medicine. For example, a woman gave birth to Siamese twins, who had to be separated because one of them suffered from a disease that threatened the death of both. Before the intervention, a prognosis for the operation is made. Possible options could be:

1. Both children will die.

2. One of the twins will die.

3. Both will survive.

Relatives are informed of these options and, after deliberation, agree or refuse intervention.

Other types of risk

Depending on the subject who is harmed, actions can be directed towards an individual, legal entity, society, or state.

Based on the size of the damage, large-scale and minor risks are distinguished.

Dangerous actions may have one or more consequences. In the first case, if permissible limits are exceeded, liability will arise under one specific article of the Criminal Code. If there are several consequences, accordingly, the punishment is imposed according to several criminal norms.

Risk and necessity

As mentioned above, the legislation provides several grounds for recognizing the actions of a subject as non-criminal. At first glance, there is a similarity between extreme necessity and justified risk. The actions of the subject in both the first and second cases have certain legal grounds and are recognized as socially useful. In addition, the norms set a limit on the subject’s behavior. If it is exceeded, liability arises both in case of risk and in case of extreme necessity. The circumstances under which a person is forced to perform certain actions may, of course, be different. It is not always possible to quickly assess the situation and make an informed decision.

What is the difference between justified risk and extreme necessity? Let's look at the main features.

If absolutely necessary, damage caused by the actions of the subject is inevitable. It is, in fact, applied to prevent danger. With a reasonable risk, this harm is only assumed, i.e. there is a probability of its occurrence.

When absolutely necessary, a person causes damage that is less in nature and extent than what could occur if nothing is done. With a reasonable risk, potential harm cannot always be prevented.

Exceeding the limits of necessity can only result in criminal penalties if damage is intentionally caused. If the risk lacks at least one of the conditions under which it is recognized as justified, the person may be held liable for causing harm through negligence.

Urgent necessity

“In cases where an act containing signs of a crime in the field of entrepreneurial and other economic activity is committed by a person in order to eliminate or prevent a danger that directly threatens the individual, the legally protected interests of society or the state, and this danger could not be eliminated by other means, then an act cannot be considered criminal provided that the limits of extreme necessity were not exceeded,” the Plenum explained. — For example, temporarily carrying out business activities without a license (the license is not renewed within the established time frame) does not entail criminal liability if the cessation of this activity may lead to disruption of the work of life support facilities (cessation of water intake, water treatment, heat supply to housing and social facilities of a populated area, the threat of a man-made accident etc.)".

To recognize such actions as “extremely necessary”, “the presence and actual nature of the danger that has arisen must be established, as well as the impossibility of eliminating it without causing damage to the interests of the individual, society or state and the absence of a clear excess of acceptable limits, including in the form of causing harm, equal or greater than what could have been caused by the further development of the danger that has arisen.”