Research On The Source Of Omission Obligation

Criminal acts can be divided into two parts: one is the active, and the other is the negative, or omissions. Compared with the active crime, the omissions as a crime, not as the establishment of criminal responsibility must be based on a particular obligation, and only the action of who has that particular obligation could be considered a crime. This opinion has been generally accepted by the criminal law experts in our country. Therefore, China current Criminal Code also provides for a series of negative non-performance of specific obligations of the criminal law to protect legal interests and thus pose a serious damage to the criminal acts of omission. However, regarding the obligation not as a source of crime of this basic question, there is a big academic controversy, including the Three sources, the Four sources, the Five sources and the Six sources. At present, scholars generally agree with the Four sources: First, the law on obligations, as expressly provided; Second, the post or on business, as required by obligations; Third, as the legal obligations arising out of acts; Fourth, first acts as the obligations arising from. However, with the rapid development of market economic, science and technology with each passing day, all kinds of new type of crime, particularly as a way of negative crime is being constantly increased, because of the delayed development of law and China current legal system is inadequate, many people to circumvent the laws and regulations and to walk on the edge of them. Therefore, in recent years, scholars have put forward the case now that could not be classified as similar to the above four sources of any kind, then the source of an obligation may be increased, that is a major act of morality people's obligations. The author shares the view that will be used as a source of obligation to expand the sources. In this paper, the author will increase the fifth source which is based on the general theory, that is in particular cases, a major act of people's morality obligations.The full text is divided into five parts in detail, the following introduction to the main contents are as follows:The first part is"law on the obligations as expressly provided". This section includes two aspects, one of which is"over that", that is up from the legal obligations as expressly provided for the definition, such as a summary of the three characteristics of obligation, and cited Germany, Austria, as well as the Macao Special Administrative Region of China and China's mainland with regard to the Penal Code does not expressly provided as a crime. The other is"in practice that the problem should be noted". At this part, the author discussed three main questions: First, it expressly provides that all legal obligations can become a crime or not as a source of obligations. The laws here are classified by the author, one is criminal law, the other is any other law., criminal law as expressly provided on the obligation can be able to become a source of obligations as a crime, and on other legal obligations as expressly provided only could be recognized by the criminal law that will be a source of obligations crime; Second, the obligations under the Constitution can become the basis for the obligation happened or not. I believe that its obligations under the Constitution itself is a matter of principle, the norms of a general obligation norms, these norms of the general obligation to be specific only to the norms embodied in the criminal law before it could become a duty. The practice of constitutional norms of the general obligation to provide the legislature is often specific department of law, so that in principle even if the obligations of the Constitution with operable, when the norms are specific to each department law the constitutional obligations which have been confirmed or approved by the criminal law, it can be a crime not as a source of obligations; Third, the relationship between husband and wife during the existence of obligations arising from the issue of aid. Comment on this issue in the process, the author cites the case of two real, it is both between husband and wife cases: one wishes to commit suicide, while the other did not help, leading to the death of the suicide. However, judicial practice has made a complete opposite of the two sentences, which makes the application of a penal code with the judiciary in our country of a very embarrassing position. It is from my point of view combined with the practice of"Marriage law"in our country,"mutual support between husband and wife obligations"include"aid obligations"made answered in the affirmative. In order to come to the conclusion: the existence of mutual help between husband and wife's obligations, such as the obligation should be on legal obligations as expressly provided.The second part is"on duty or on the requirements of business as a duty". Also includes two aspects: First,"will say"still from the concept, stressing that"on duty or business as on the requirements of obligations"in the main is on the main body for the special, which is different from"legal obligations as expressly provided"; Second,"in practice should be noted that the problem"the author talked about the three main questions: Firstly, the"job"or"business"of the understanding of the scope; Secondly, it is necessary to grasp the attention of time-bound; Thirdly, it is necessary to define the scope of duty of care. Through the three issues discussed above, in practice, can better understand and grasp"on duty or business as required by the obligation on"the inherent requirements, but also a better source of such obligation and the"legal obligations"distinguished.The third part is"an obligation arising out of the legal acts". Includes three aspects: First is"over that", the main explanation of"legal acts"; Second is"behavior contract"as one of the legal acts of the contractual obligations is generated as one of the most important act of truth. The author of the form separately from the contract, the validity of the contract and the contract after the signing of the actual performance of such areas has not yet been fully addressed by the contract arising out of acts as obligations; Third is a"voluntary act", which is legal obligation arising out of acts as a kind of situation again. The author believes that"voluntary act"as the name implies is the act of its own people the true meaning of the express obligations voluntarily assume a certain behavior, similar to the civil law on the word"free of debt management". When people act because of the voluntary act of beginning to bear a certain degree of obligation, but because of some kind of objective or subjective reasons do not want to continue to undertake such obligations, if the people at this time refuse to continue and that caused interests which are protected by the criminal law are subject to damage, then that person will undertake some certain adverse legal consequences by his own previous voluntary acts.The fourth part is"an obligation arising out of the preceding behavior". This section is divided into"say overview","the principle of the preceding behavior"and"the scope of the preceding behavior". In the"say overview", the author summarized the fundamental nature and characteristics of the preceding behavior from several representative definitions; On"the principle of the preceding behavior"generally saying, in form and substance of the preceding behavior of both the establishment of the conditions given to certain restrictions; In"the scope of preceding behavior", the author on some controversial issues in more detail. Whether or not limited to acts such as illegal acts, criminal acts and so on can become the preceding behavior.The fifth part is"specific occasions, major acts of moral requirements to fulfill the obligations of people". This section includes four aspects: First,"will say".The author mainly to talk about the background why she proposes to increase"significant acts of moral requirements to fulfill the obligations of people"as a source of negative criminal; Second, the"great moral obligation must be strictly defined". In this section, the author from the need to fulfill their obligations, as well as the possibility of not fulfilling their obligations, the consequences have been discussed and so on, trying to define the"significant obligations"; Third,"the need for increasing the significant moral obligation as a legal obligation". Our country is a great nation which has a history of five thousand years of civilization, Since the ancient times, benevolence , loyalty, etiquette, intelligence and reputation are more widely respected noble character, but with the development of society, in particular, are significantly enhance the economic level of today, people's moral standards are at a steadily falling. Especially the emergence of"Fan paopao", let us even more to re-examine our own moral standards. As a result, increasing some significant obligations to become a legal obligation has been welcomed by all; Fourth,"significant moral obligation to rise to the possibility of legal obligations". Ethics into the law of our country is not original, the European country has a lot of the Penal Code provided for a number of important that we talk about moral obligation. Therefore, in our country's basic national conditions in connection with national basis, learn a foreign essence of the Criminal Code, eliminating those with the actual situation in our country are incompatible with the principle of the system, provisions, and certain closely related to daily life, have a significant impact on the increase in legal ethics is entirely feasible.