Dilemma And Way Out: Research On The Problem About The Relative Becomes One Of Negative Crime's Obligations

Obligations of negative crime have long been attracting the attention of scholars in the field of criminal law. Obligations are necessary for negative crime, while there is no provision in the criminal law on it. The problem to decide which obligations are suitable for negative crime becomes the business of theory. The traditional theory of omission obligation, because of it's imperfection, has been challenged by practices. So"same cases, but different judgments"happened in judicial practices. Some judgments are according to traditional theory, while some judgments betrayed it. In order to stop it, the theory of omission obligation must be improved. These judgments are mainly about conjugal relation and lovers cohabited. So in order to deepen the disquisition of this problem, the author chooses relatives as object. Facing the dilemma of theory and the puzzlement of practices, the author inquires the problem about relatives becomes one source of negative crime's obligations. During searching documents, treatises on negative crime are concentrated on the phenomenon that husbands and wives refuse to rescue each other in mortal danger or on the problem whether moral obligations should be one source of negative crime's obligations. Because the relative as the object involves those two, maybe it will be the way out of dilemma. This treatise can be divided into six parts.Part one:The dilemma that the traditional theory in. The phenomenon"same cases, but different judgments"show the traditional theory has lag behind the practices, and can't satisfy the demand of practices.Part two: the theory of omission obligation in continental law. In this chapter, the author introduces the theory of omission obligation in continental law, including the superficial theory of omission obligation and the substantive theory of negative omission, and points out the useful experiences for reference.Part three: the conditions that the relative becomes one of negative crime's obligations. First it is not contrary to the principle of crimes and punishments stipulated by law. Second it is up to the general standard that morals obligations become law obligations.Part four: the foundation that the relative becomes one of negative crime's obligations――the justification of criminalization in the in view of retribution and utility. This part mainly elaborates some omissions between relatives have serious harmfulness in the objective and subjective. The criminal law publishes negative crimes in order to protect the legal interest. In order to protect legal interest, if the relatives have the relationships of the protection of legal interest, the omission of actors will infringe the legal interest. Though analyzing the social functions of relatives, the author proves that some relatives have the relationships of the protection of legal interest.Part five: the limitation. This part concentrates on the tolerant spirit of criminal law and the application of it to the relationship between moral and criminal law. Generally criminal law has becoming more and more tolerant to anti-moral action. So the reasons of criminalization should be detailed. The kinds of the relative which should become sources of negative crime's obligations include: conjugal relation, parents and children relationship and the relationships similar to above.Part six: the condemnation. This part concerns with the equal-value in offense of non-typical omission. The purpose and essence of the equal-value is to confine the scope of punishment. In this part the author illustrates how to condemnation in cases.