The Advanced Behavior In Criminal Law

In this paper，based on the existing research results，through the methods of analectsresearch and comparative research,try to investigate the basic issues of advanced behaviortheory systemicly. The content of this paper is as follows:First,have a theory summary of the advanced behavior. This paper will introduce thesource of conduct obligation of negative crime theory briefly. On the basis, introduce theadvancement and development of the advanced behavior theory,definite the conception andcharacter of advanced behavior.Getting the conclution: Advanced behavior is the behaviorwhat lead the appearance of dangerous state and bring the remove obligation.The subject ofadvanced behavior must be the people who actualize the conduction,its legal consequences isbringing the obligation about law.Second,finding reasonable basis for advanced behavior. Although advanced behavior isone of the three guarantor of Continental law, but its Rationality of existence suffer oppugnfrom the academia, especially the practice that German and Japanese criminal law delete theclause about advanced behavior, made people doubt the existence necessity of advancedbehavior. In the academia, some scholars bring the alternative plan about advanced behavior.The author affirm advanced behavior’s statue as the source of conduct obligation of negativecrime,we can find Theoretical basis for it from jurisprudence and the existing theoreticalframework.Virtual jurisprudence basis can be found from the relationship between thebehavior and the harm result,include the theory of Causal relationship、the theory of control;Also can be found from the relationship between the behavior and casualty, include the theoryof trust relationship、the theory of the prior existence of close relationship. Through theanalysis of China’s current legal system and theoretical system, we find that: Advancedbehavior is the flexible use of the legal principle of crime and punishment, the socialharmfulness of the harm result are not allowed by criminal law,and the advanced behavior’stheoretical position hiden in criminal law’s clause.Third, definite advanced behavior’s condition. Now the the advance behavior theory in academia are too general and disorderly, can’t meet the needs of judicial practice, whatwe need is a clear standard in order to To solve current confusion in the judiciary. In this partthe author try to construct the advance behavior’s condition, it is that which situation can bringaction obligation, find systemic legal basis for the definition of advanced behavior. Throughresearch the author thinks, there are three conditions of advanced behavior: the one is leadingspecial dangerous state, the next is the possibility of fulfilling salvation obligation, the last isspecial causal chain.Last, discuss the specific scope of the advance behavior. At the end of the article,theauthor will analyse the extion of advanced behavior from the conception of advanced behavior.Through the analysis,the author thinks: From the attribute of the behavior, it is not limited toillegal action, should include legal action conditionally, and exclude the action which the victimhas fault; should include criminal action conditionally, exclude the situation that the harm resultbe regulated to aggravated-result culprit and transforming culprit; From the mode of thebehavior, it must be action. Although the advance behavior may contain a series of actionswhich appear as action and have Causal relationship between each other, the advanced behaviorwhich aroses the causal chain must appear in the form of action.