Research On Previous Act

Stubel was the first scholar who proposed that previous act should be one obligationsource of omission crime. The previous act theory had not been generally recognized sincethe debate of causal relationship started up in Mid-19thcentury. Previous act is a precedingact which threatens some kind of legitimate rights. Meanwhile, owing to the dangerouscondition created by the act, previous act is also an act which could generate obligation.At the present time, the research about previous act is still in the primary stage ofexploration in our country. There is a huge controversy for many respects, for example,there are still some scholars deny the guarantor’s position of the previous act. Eventhose scholars who affirm the guarantor’s position of the previous act have differentviews on its reasons, conditions and category. However, along with the rapid developmentof economy and accelerated urbanization, there are many cases pertaining to the previousact in judicial practice which need to be addressed by the theory. Therefore, study ofthe previous act is of great significance not only for the purpose of improving the theoryof criminal law, but also for the development of judicial practice. Based on the aboveissues, this paper is to be divided into four parts to analyze the previous act.Chapter1briefly introduces the origin of the previous act and the present situationof the research about it. Chapter2analyzes the justifiable foundation for theguarantor’s position of the previous act. By comparing formal guarantor’s position withessential guarantor’s position, the author put forward that the legal basis should beproved in the field of essential guarantor’s position. Among doctrines on the essentialguarantor’s position, the theory of causal relationship can be regarded as the fundamental basis of the guarantor’s position of the previous act. The dependence theory and dominancetheory further improve the framework of the guarantor’s position of the previous actrespectively from the relationship between people and people and the relationship betweenpeople and casual process. These two theories can be regarded as the legal foundation forthe guarantor’s position of the previous act at the second level. Chapter3illustratesthe conditions of the previous act. In short, the previous act which cause dangerouscondition enough to infringe on specific legal interests shall be an act implemented bythe behavior himself. Meanwhile, the previous act also should be sufficient condition butnot necessary condition for the occurrence of dangerous states. Chapter4defines thecategory of the previous act after demonstrating the conditions of it. Overall, theprevious act is not confined to illegal act and responsible behavior but it does not containcrime act and omission. The first section and the second section are focal points in thischapter. The first section discusses if the previous act is confined to illegal act ornot. The author insists that the actor who creates risks has an obligation to control themafter confirming that whether illegal act or not does not affect the identification ofthe guarantor’s position of the previous act. As a result, legal act can be previous act.But, at the other side, we should pay attention to those exceptions such as justifiabledefense. Section2discusses if the previous act includes crime act or not. Though mostscholars affirm the guarantor’s position of crime act, the author insists that neithercalculated crime nor criminal negligence can be a source of obligations by refuting reasonsof affirmed scholars such as the implicate offender theory and the anticipated possibilitytheory.