The Research On Prior Conduct In Omission Crime

The prior condut has always been regarded as one obligation souce of omission crime,but there are still many problems to be solved. For example, should we admit prior condut theory? What is the justifiable foundation to prior condut theory? Which action and how an action can be regarded as prior condut? The article aims to answer these questions.Chapter one elaborates the history and the theoretical premise of prior conduct theory. Firstly, following the introduction of the origin and history of prior conduct, the status of prior conduct in the theoretical system of omission crime is analyzed. Considered as one source of formalized duty to act in omission crime, the prior conduct theory is shaked, when the formalized duty to act theory can’t be fully accepted by academics and practitioners.Chapter two aims to explore the justifiable foundation of prior conduct.Comparing various views concerning the substantive duty to act in German and Japan, the author approves the theory called "dominance of causality", which put emphasize on the factual elements. But different views were held by scholars, when it comes to the prior conduct theory, though they all surport the theory of "dominance of causality", for the different definition of "dominance". This part attempts to give an rational explanation to the concept of "dominance" to review the prior conduct theory.Chapter three discusses the cognizance standards and the range of prior conduct in omission crime. In the basis of introducing the famous theory of objective imputation of criminal liability advocated by professor Roxin into the discussion of this topic, to review the prior conduct, the risk creation and related risk should be the standards. Based on the prior criterion, offenses of negligence and intentional may become the prior conduct, while legal acts just can’t be considered as prior conduct.Chapter four describes the guarantor’s liability. Firstly,Three models of guarantor’s liability were introduced. In the conclusion of supporting the prior conduct theory, guarantors should assume liability according to the derivative omission offense model. Secondly, prior conduct was devided into four categories to determine which liability models should be choosed.