Not As A Crime As A Source Of Obligations

The source of the act obligation has very important station because it is the ground which determines the crime of the omission. And the scope of the source of the act obligation relates to the scope of the crime of the omission. In the theory and practice, the source of the act obligation often produces dispute. The thorough research on the source of the act obligation has very important significance to the criminal theory and judicial practice. The article research the source of the act obligation. The author expects that the research has some help to the further promotion of the theory of the crime of the omission in our country, and to the determination of the act obligation of the crime of the omission in the judicial practice.Except the foreword and the conclusion, the article divides into three parts. There are about 30, 000 words in the article.In the first part, the article discusses the outline of the source of the act obligation. Firstly, the article elaborates some respects of the act obligation, including its concept, characteristics, and the status quo. The author thinks that "the act obligation" is the obligation which requires the certain movement of the body, namely the obligation which requires the certain positive behavior. Based on the concept, this article elaborates the characteristics of the act obligation: The content of the act obligation is the implementation of the certain positive behavior; it is legal obligation, not moral obligation; it exists with the certain fact and condition; it must be related to the consequence in the criminal law. On the status quo, the author analyzes the theory of causation, violation and guarantee. The author thinks that the act obligation belongs to the objective requisites of crime. Secondly, the author discusses the concept and the status quo of the source of the act obligation. The author thinks that the source of the act obligation is the places which produce the act obligation, namely the basis which produce the act obligation. On the status quo, the author thinks that the source of the act obligation is the base which determines the act obligation of the crime of omission; it relates to the scope of the crime of omission; the theory of the source of the act obligation is a part of the theory of the objective requisites of crime. In the second part, the article discusses the evolution of the theory of the source of the act obligation. On the theory of criminal law, there are three kinds of doctrines, including the formed doctrine of the act obligation, the substantial doctrine of the act obligation and the unified doctrine of the formed and substantial obligation of act. The author carries on the introduction and the evaluation to the representative theory in the Sino-foreign criminal law theory.In the third part, the article discusses the determination of the act obligation. The author divides this part into four parts.Firstly, the author determines the direction of the source of the act obligation. The author thinks that the source of the act obligation must adopt the formed doctrine of the act obligation, but it must strictly define the scope of the source of the act obligation. The act obligation must be legal obligation. Whether does the act obligation produced by the action before belong to the legal obligation? The author thinks that it belongs to the legal obligation because the action before is one kind of legal actions. Therefore, the author thinks that the sources of the act obligation include: the explicit provision by law, the professional request, and the legal action. The legal action includes the contract action, the voluntary action and the action before.Secondly, the author researches on the explicit provision by law. The author thinks that the explicit provision by law does not limit to the criminal law, and also includes the act obligation in other legal rules which is approved or requested by criminal law. The constitution cannot become the source of the act obligation.Thirdly, the author researches on the professional request. The author thinks that we must pay attention to something when understanding the act obligation in professional request: the period and the content of the act obligation; the behavioral person has obligation in fact whether he has the professional qualification or not.Fourthly, the author researches on the legal action. On the contract action, whether the contract is invalid or has not become effective, the person may have act obligation. After expiration of the contract, the person may have act obligation. On the voluntary action, the author thinks that not any voluntary action can become the source of the act obligation of the crime of omission. As long as the person who accepts the voluntary action undergoes higher dangerous because of the trust to the behavioral person's aid or the voluntary action doesn't objectively enable to get other protections, the voluntary action may become the source of the act obligation. On the action before, the author thinks that the action before doesn't restrict to the illegal action. But when the law allows the injury or the loss produced by the danger which is produced by the legal action, the action before doesn't produce the act obligation; the action before restrict to the act, and don't include the omission; the action before doesn't restrict to responsible action. On the question whether the action before includes crime, the author carries on the discussion by dividing the crime into five kinds of situations. On each kind of situation, the author carefully analyses some questions, including: whether the crime belongs to the action before; when it belongs to the action before; and the process.