Research On Preceding Behavior Of Negative Crime

Compared with the negative crime, the preceding behavior is a second-level concept. In other words, the preceding behavior is regarded as a source of the negative crime. As a source of the negative crime, the preceding behavior has been recognized by scholars. However, there is a huge debate in the theory on its reasons, conditions and scope. Therefore, there are two extremes in judicical practice when treated the cases: whether to narrow the scope of the adjustment of penalties, not to punish its behave for its preceding behavior which should be punished before, or to expand the scope of punishment, enlarge the criminal behavior, objectively lead to the generalization of the Penal Code and the expansion of penalty. Based on the above issues, this article analysis on the preceding behavior. The whole article is divided into four parts:The first part is〝the preceding behavior outlined〞. There are two aspects: Firstly, through the concept of the obligation which caused by the preceding behavior, talked about some famous theroies on the criminal scholors. Based on its definition, they think that the preceding behavior is a harmful behavior, the obligation from the preceding behavior was due to the implementation of prior acts and the prior acts make the legitimate rights in the risk of a serious harm, the actor has a specific obligation to deduct the danger or to prevent the result. On this basis, further clarified the characteristics of the preceding behavior. Secondly, make an analysis about the relationship between the preceding behavior and the negative crime. We can see that to be a negative crime, the actor must has a certain obligation as a premise, it is an essential factor .The second part is〝the reason that the preceding behavior became the sources of the negative crimeˊs obligation〞. It has two aspects: Firstly, there is a brief statement about the history and relative theories of the preceding behavior, divided them into different sayings. Based on these theories, I have my own view, in fact, the preceding behavior is a legal acts that can create a criminal relations, obligation is also a legal obligation. We can see that the preceding behavior is based on the legal norms not the habits, the obligation from the preceding behavior dose not have to exist in the legal norms. Secondly, there is a statement on the relationship between the preceding behavior and the principle of〝crime defined from laws〞. Based the concept of the principle of〝crime defined from laws〞, we can see that the negative crime which caused by the preceding behavior is an open criminal element, there is no contradiction between them. Thirdly, there is a saying about the distinction between the preceding behavior and the moral obligation. Although the preceding behavior has the same basis with the moral obligation , but the moral obligation can not be the source of its obligation.The third part is〝the principle of the preceding behavior〞. According to the principle of〝crime defined from laws〞, not all preceding behavior can cause an obligation, otherwise, there will be a great possiblity to expand the scope of punishment. There are two aspects in this part: Firstly, is about the former factor of the preceding behavior, we can see that the preceding behavior should be an act by the man who did it by himself, with dangerous state and a direct relationship between the act and the dangerous state, the actor can help to prevent the danger. Secondly, the statement about the essential element of the preceding behavior. We can see that the actor has an obligation to the legal right; the legal right has already had an urgent and specific danger; the actor has dominant the legal right.The forth part is〝the scope of the preceding behavior〞. Since the law does not cover the preceding behavior, there is no standards about it. This part have three aspects: Firstly, whether the preceding behavior is an illegal behavior. It is mainly about whether the legitimate acts can cause an obligation; whether the criminal behavior can be seen as the preceding behavior. We can see that the dangerous state can also be caused by the legitimate acts. It can become the preceding behavior when the legitimate act causes an obligation. There are three situations on whether the criminal behavior can be seen as the preceding behavior, in certain situations, the criminal behavior can also become the preceding behavior. Secondly, whether preceding behavior should have certain behaviors. We can see that from the basic theroy, there is no need to have certain behavior while set up the preceding behavior. Thirdly, whether the preceding behavior is a responsible behavior. According to the facts, the preceding behavior is not only a responsible behavior, it can also be an unresponsible behavior .The last part is the conclusion. In this part, there is a overview about the last four parts, and then talk about the necessity and the importance to research the preceding behavior.