The Research On The Advanced Behavior Of Negative Crime

The source of conduct obligation in negative crime theory, which centered by the advanced behavior has long been the controversial issue in the field of criminal law. And there are utterly different attitudes from domestic and foreign scholars surrounding the elementary theoretical issues lie in the advanced behavior. I think the proposition of the advanced behavior theory is the demand of judicial practice, and yet most scholars incidentally refer to it in angle of the source of conduct obligation, only few have a specialized and systematic study.In this paper, based on the existing research results, through theoretical research and specification methods such as comparative study, as well as the acknowledgement of equal-value between action crime and negative crime as the argument point, around the controversial issues, I dialysis through the depth of the various theories and the realistic need in the criminal judicature field to testify the rationality of the advanced behavior and other related issues, then try to the advanced the beneficial proposal for the legislative model of the advanced behavior. The content of this paper is as follows:First, have a theory orientation of the advanced behavior. As the negative crime must be necessarily a violation of the specific conduct obligation, and the source of conduct obligation is the origin and condition of conduct obligation, and the basic problem of the advanced behavior is whether the conduct obligation can be caused by it. Therefore, the advanced behavior is studied as the source of conduct obligation in negative crime.Second, to demonstrate the existence of the advanced behavior based on rational. To come up with the question of whether the advanced behavior can be the source of conduct obligation, domestic and foreign scholars have two attitudes that is affirmation and negation, and the focus of controversy lies in reasonable basis for the existent of the behavior. First of all, I think that the affirmation should be confirmed, but because the solution to the problem is to provide the necessary basis for the establishment of the advanced behavior position and it is not certainly the essential criterion of the behavior, so it is not necessary to get into a fight over the specific basis. On the basis, I put forward the reasonable basis which maintained in this paper.Third, give a depth analysis of relationship between the advanced behavior and the pertinent issues in criminal law for making necessary answers to the possible questions in reality. The author thinks there is no irreconcilable conflict between the advanced behavior and principle of legally prescribed punishment; it is the representation of comparative principle of legally prescribed punishment. The certain distinctions between the advanced behavior and the other sources of conduct obligation are directly related to the cognizance in different crimes. At the same time, the distinctions between the obligation of the advanced behavior and moral duty also related to the cognizance in crime and non-crime.Fourth, discusses the identification of the advanced behavior. By combining the related crime cases, on the one hand, the author limits the elements of the advanced behavior from the macropic point of view, on the other hand, discusses the specific controversial scrop of the advanced behavior from the microscopic point of view. From the perspective of objective legal evaluation, I think the advanced behavior which causes the dangerous condition is not impacted by the nature of the behavior, the advanced behavior should not be limited to illegal behavior, the legal behavior and the criminality can also be the advanced behavior under specified conditions, but inaction isn't suitable to be.Finally, attempt to provide recommendations for legislation model of the advanced behavior. To consider the requirements of principle of legally prescribed punishment and the feasibility and operability of legislation, I think the general criminal enumerative model might be suitable, the negative crime and the source of conduct obligation are general laid down in the general criminal law, then it is necessary to make a definite enumeration of the main sources of conduct obligation which involve the advanced behavior.