Studies On The Legitimate Condition Of Obligatory Conflict In Criminal Law

“The obligatory conflict of Criminal Law” lies in the theory of Continental legalsystem, which is a legitimate ground to pay considerably attention and surpass thelaws and regulations. Formerly the theory of Criminal Law is rarely involved in thisfield for a very long period in our country. But with the phenomenon of obligatoryconflict in recent years emerging largely in our social life, the scholars of Criminallaw project the investigative vision toward the theory of obligatory conflict. Thispaper mainly starts discussing around the four elements of the legitimacy toobligatory conflict, in order to explore some problems in the obligatory conflict ofCriminal law from the component perspective of reasonable elements.“Introduction” makes a brief summary about the current status on researchinto obligatory conflict, and take “the dray case in Faku in the province of Liaoning"as the breakthrough point on research into obligatory conflict, put forward theproblem which exists in the theory of obligatory conflict. At present the reasonableelements of obligatory conflict have four aspects which was relatively received.“The first chapter” firstly introduces the concept of the obligatory conflict,and discusses the obligatory nature in the obligatory conflict, elaborate the link ofmoral obligation and legal obligation then regarding the obligations into theobligatory conflict of Criminal Law must be a legal obligation rather than the moralobligations. Secondly, make a reasonable definition to the types of obligatoryconflict and regarding the classification is more reasonable as the basis of a legal act:a conflict of active duty and negative duty, a conflict of negative duty andnegative duty. Finally, explore the source of obligatory conflict, which is divided intotwo aspects:“the source of obligations to be infringed” and “the source ofobligations to be fulfilled”. When two duties have a conflict each other,“theobligations to be infringed” should be criminal obligations.“The Second chapter” makes discussion about the legitimacy of obligatoryconflict, considering it is a kind of illegal ground to surpass the laws and regulations,subsequently discuss the nature of “the obligations under the non-performance”, the theory on the balance of legal interest properly evaluate its nature. Finally, discussthis problem about the possibility to obligation fulfill under the issue of negativecrime, come to a conclusion of “comprehensive theory” about the possibility tofulfill, which both considers the capacity of behavior to perform and the objectiveenvironment to fulfill at that time.“The third chapter” when the situation of criminal obligatory conflict occurs,which is not attributable to the behavior, that is to say, the behavior may not havesubjective fault. This article respectively discusses several kinds of subjective crimefrom two aspects on the situation of attribution to the behavior and no attribution tothe behavior.“The fourth chapter" after the behavior possess the above three conditions, theychoose the legitimacy, and must make a correct choice to prevent illegality andeliminate the crime. The behavior will still have subjective fault between the wrongchoice and no choice. And discusses the occasion that the behavior appear in theunequal duty, coordinate obligation and obligatory value which can not be measured,at that time how to choose is right.“Epilogue” make a summary for four elements of the legitimacy of obligatoryconflict, and distinguish when the behavior choose the subjective psychology tofulfill obligation, especially puts forward to distinctively treat the subjective aspectof “refuse to choose” and “not yet choose”. Consequently come to a conclusion thatthe subjective crime of “refuse to choose” is on purpose, but the subjective crime of“not yet choose” includes the negligence and non-fault, and the negligence containscarelessness negligence as well as overconfident negligence.