The Conflict Of Obligations In Criminal Law

In the history of human development, a variety of religious norms, ethical normsand legal norms which maintain the order and the freedom of the society graduallyappeared, and then obligations appeared too. Obligation is the restrain which is aperson should be made to comply with the universal legitimacy. This paperdefines the concept of the conflict of obligations in criminal law by compared withthe conflict of obligations in general sense. The conflict of obligations in criminal lawrefers to the situation that when someone performs a number of obligations which cannot be performed at the same time, he only performs one of them and violates othercriminal obligations as a result of the limitations of insurmountable legal norms or thelimitations of human individuals’ ability and resources. We can divide the conflict ofobligation in different ways based on different perspectives and research directions.For example, we can divide the conflict of obligation into the conflict betweenpositive obligation and negative obligation, the conflict between positive obligationand positive obligation, and the conflict between negative obligation and negativeobligation. We can also divide the conflict of obligation into the conflict of obligationin logic and the conflict of obligation in fact. The conflict of obligation in criminallaw is concerned by many criminologists as an act of removing irregularities. It isstudied more deeply in criminal law theory of continental law system while ourscholars began to study it only in recent years.This paper strictly distinguishes the legal nature and the reasonable basis of theconflict of obligation. In the legal nature level, we must put the conflict of obligationinto the framework of the justification in general provisions of criminal law. In thispaper, the conflict of obligation is considered as an act of removing irregularitiesoutside law by compared with the necessity and the act according to law, but theremay be some superposition in scope with the above two types of behaviors. Thereasonable basis of the conflict of obligation refers to the out crime reason why thisact isn’t seen as a crime. By comparing the superiority and the inadequate of differenttheories in continental law system and Anglo-American law system, author thinks that the social equivalence theory which is on behalf of the requirements of socialethical order approved by the community can explain the reasonable basis of theconflict of obligation successfully. And then we can find an out crime reason for theconflict of obligation reasonably by linking the social harmfulness theory in Chinesecriminal law with the social equivalence theory.The conflict of obligation in criminal law must fit the establishmentof conditions which contain conditions in subjective aspects and objective aspects.Objectively speaking, the perpetrator must burden two or more obligations that areincompatible at the same time. We had better divide the obligations into “theobligations performed” and “the obligations violated” according to the obligationsources to discuss and to analyze the scope of the obligations considered the typicalcases and the theory of the negative crime’s positive obligations. In a number ofobligations which form the conflict of obligation in criminal law, not only “theobligations performed” include the moral obligations, but also “the obligationsviolated” contain the moral obligations that mean public order and good customs.When an act of the obligation conflict complies with the constitutive elements of acrime on the surface, the most important thing is to make a choice which has thesocial equivalence. The social equivalence should become the ruler to choose theright obligation. This article respectively discusses how a person makes a reasonablechoice when the obligations are not with equal value, when the obligations are withequal value and when the value can not be judged. In addition, the situation of dutiesconflict can not be caused by the prior behavior of a person. In the subjective aspect,the conflict of obligation can be studied from two sides which are elements ofunderstanding and will.Since there is behavior with correct choice under the situation of obligationconflict, there must be behavior with bad choice also. The behavior with bad choiceincludes the wrong choice behavior and the obligation conflict in imagination.I severally introduced the concept, the constitution and the criminal consequences ofthe two type behavior. The wrong choice behavior infringes the legal interest which iswith more worth objectively, so there is certain social harmfulness. There are threekinds of subjective form of the wrong choice behavior which are intentional, negligence and no culpability. In the first two cases, it is right to convict and punishthe crime based on the violated obligation which is with higher value, while it is rightto consider it as accidental force or fortuity if the person has no culpability. Theobligation conflict in imagination refers to the situation that a person mistakenlythinks there is an obligation conflict state when he doesn’t burden many mutuallyexclusive obligations. In this case, there may be three situations that includenegligence fault, overconfidence fault and accident. In first two cases, a person mayconstitute a relevant negligent crime, so we should convict and sentence according tothe rules about the negligent offender in the provisions of the criminal law.So far, this paper analyzed and discussed the conflict of obligation in criminallaw comprehensively and completely.