A Study Of Negative Crime

Negative crime is a kind of crime committed by one who fails to fulfillhis obligation when he is capable of doing that. Negative crime has longbeen attracting the attention of scholars in the field of criminal law,yet we lack a deep study on this topic, on the other hand, crimes of thiskind has been puzzling judicial practices for quite a long time, so in orderto deepen the disquisition of this problem, the author chooses negativecrime as her subject. Yet as this field covers a wide range of theoreticand practical problems, it is too much for a master's paper to give acomprehensive expatiation, so the author simply chooses to discuss someparticular issues which are blur in this area currently. Apart from the introduction, this article consists of fundamentalproblems of negative crime, obligations of negative criminal, ante conductof negative crime and the irregular nature of negative crime, about 29034Chinese characters, with 2000 of footnotes. Part one: fundamental problems of negative crimes. This chapterconcerns with the definition of negative crime, as well as its constitutiverequirements and conductive nature. In this chapter, the author expressesher idea that the ascertaining of pure omission condition should be basedon the need of legislation, and the author also believes that there shouldbe four conditions of the offense of nontypical omission. The recognitionof the nature of negative crime should be based on the following two points:1. To defer the conducts on the criminal system (conduct on the rule oflaw) from the conduct before the criminal system (natural conduct); 2. Theconductive nature of negative omission can only be materialized in certainsocial relations, so we should analyze this problem from the angle of socialvalue. Part two: obligations of negative omission. In this chapter, the authorcompares the superficial theory of omission obligation and the substantivetheory of negative omission, and points out that to trace the origin ofthe obligation, we must base on a comprehensive analysis of the substantialfactors and the superficial factors. As of the problem of the possibilityof fulfilling the obligations, a principle of suiting subjective toobjective should be stuck to, that means, in order to establish the standardof obligation-fulfilling, we should base on the actor's personal ability,combining certain circumstances, and take the theory of probability ofanticipation for proper reference. Part three, ante conduct of negative omission. This chapter makes adetailed research on the nature and sphere of ante conduct. As a legal act,ante conduct should be the act of the actor's personal behave, besides,there should be the existence of the state dangerous enough to violateother's legal interest in order to structure an ante conduct. The sphereof this conduct should be limited to lawful acts and misdemeanors, and itcan only be a kind of action, inaction can't structure an ante conduct,what's more, there is no need to distinguish whether the actor isresponsible for it or not. Part four elaborates the illegitimacy of negative crime. This problem,in effect, is about the illegitimacy of nonstandard omission. In thischapter, the author firstly clarifies that nonstandard omission fits inwell with the principle of a legally prescribed punishment for a specifiedcrime. Due to the definite requirements of this principle, and at the sametime, our executive sectors haven't high quality enforcement; it isnecessary for us to make a more clear definition for nonstandard omissionin legislation. The legislature is suggested to take a general-divisionmethod, regulating the problem both in the general rules and in thesubsequent parts, namely, while establishing the concept of negative crimein the general rules, make clear definitions for several kinds ofnonstandard omissions in subsequent parts.