The Source Of Obligation As In Offense Of Non-typical Omission

Negative crime is a tough problem, which has been perplexing the science ofcriminal law. Although negative crime has been confirmed by lots of country’stheory circle of criminal law and judicial practice, similar cases have differentresults because of not having perfect theory construction and the controversyabout this issue. How to ascertain the source of the obligation is the key link ofsolving the problem of the negative crime. Only if we confirm this issue can wecontinue the discussion about the negative crime. Because of this reason, thispaper will base on predecessors’ theoretical basis to probe the deifnition ofnegative crime, form obligation，substantive obligation and the theory ofcombining the two version obligations. The ifnal purpose is to form a completesystem about the source of the action obligation of the negative crime.Excepting the foreword，this paper will discuss the issue about the sourceof the obligation of negative crime from four parts.The first patr introduces the conception of negative crime and the relativedefinitions about the action obligation of negative crime.‘‘Action，，in the negativecirme emphasizes the positive acts instead of illegality. The theory of “guarantor”lays a foundation on the confirming of the action obligation, which is the corefactor of negative crime.The second part is to inspect the theory history of form obligation andcomment our country’s "four source" theory. It is conifrmed that action obligationcan be produced by other laws including criminal law and qualiifed obligationitself to eliminate the simple obligations which have no directly related to legalinterest.“Obligation caused by legal actions", such statements should beabandoned because of easily causing confusions. The prior behavior includesillegal and criminal behavior except legal actions. We need classify differentsituations of discussing the punishment of the prior actions to prevent a repeatevaluation，over-evaluation, but also to prevent the lack of evaluation. Formobligation did not specify the underlying basis for punishment，and the scope ofstiffness, which leads us to explore substantive obligation.The third part introduces the theory history of substantive obligation and its main theories. I mainly draw on the theory of "plane social relations" and thetheory of "function" to study substantive obligation from the relations betweenthe perpetrator and the legal interests. Because of substantive obligation’s abstractand the certain cross with moral obligation, thus triggering substantive obligationon the basis of form obligations as the theoretical framework to prevent undueexpansion,.The forth part introduces the theory about the combination of formobligations and substance obligations and propose the view that the build of thesystem of source of obligations. As a source of obligations system from top tobottom is divided into three levels，constraints to guide each other to form acomplete theoretical system of internal logic. Form obligation level allows thesituation of competing with each other, because a behavior can meet a number ofobligations. This theory is in the Elements stage system of criminal system.