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The Research On Certain Controversial Issues About The Source Of The Obligations To The Negative Crime

Posted on:2012-03-26Degree:MasterType:Thesis
Country:ChinaCandidate:Z P TianFull Text:PDF
GTID:2166330335488313Subject:Law
Abstract/Summary:PDF Full Text Request
The obligation is the core field of negative crime,which reflects the basic elements of negative crime, and it's the main basis for the nature of crime and decide weather a negative crime can be set up.Therefore, the study about the source of active obligations, that is, the form which can be generated as the obligation is particularly important.Criminal law scholars has long been studied on this issue and some shine to share, but some key issues about the source of active obligations are still controversial, and there are no unified viewes,such as whether the antecedent act should be seen as the independent source of active obligations, weather the criminal behavior can become antecedent act,should moral obligation turn into the Criminal adjustment range and so on. This paper mainly discusses these controversial issues, is divided into six parts:The first part describes the theory debate to the form and substance as the source of active obligation firstly, and then the author give an overall evaluation of these doctrines from a different perspective.The author thinks, as a formal source of active obligations, including the express provision of law, the requirements on the job or business, contract acts and antecedent act. Meanwhile, evaluate whether one person has the active obligations need to take the formal source and the essence source into account, both are indispensable.The second part mainly discusses the two controversial issues of the express provision of law as a source of active obligations: weather the "law" is limited to criminal law and the Constitution can become a source of active obligations. At the same time, the author chooses a case as perspective, to make a more in-depth analysis about the judicial determination of negative crime.The third part discusses two contentious issues about the requirements of professional or business as a source of obligations, one is asked about the occupation or business, whether it should become independent as a source of active obligations, and the second is about the qualification of the occupation or business requirements as as a source of obligations. In addition, the author choose the "Running Fan" cases happened in Wenchuan earthquake as the angle of view, to make a brief analysis of the judicial determination to the office or business requirements.The fourth part discuss the qualification of contract acts as a source of active obligations. The author think that an active obligation arising is not in the condition of the valid contract,and the actual performance of the contract start should be considered as the boundary points which decide weather the actor has an active obligation. Meanwhile, in order to provide more adequate argument, the author extracted a rape case which happened in taxi, to make a further information about the obligations qualification of the contract acts as a source of active obligations.The fifth part discuss three problems of antecedent act: a reasonable position, its substance and scope of the definition. The author believe that the antecedent act should be considered as an independent formal source of negative crime, only the intentional crime can become the antecedent act, but do not constitute criminal negligence and non-action.Part VI is about weather the moral obligations should be turn into the source of active obligations. The author considers that the issue should be discuss from the fact and future two point of view.In the future, some certain moral obligations ought to be the source of active obligations, which, the author proposes seven reasons to prove it.
Keywords/Search Tags:negative crime, the source of obligations, antecedent act, moral obligations
PDF Full Text Request
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