Research On Advanced Behavior In The Negative Act Crime

Advance behavior，as a kind of guarantors, has been recognized both in criminalacademic circles and judicatory cases with over one century’s development sincebeing first introduced by Germany scholar Stubel. Advance behavior, also namedpreceding act, refers to actor’s negative act happening after legal interests’ being indanger. The present study is mainly divided into three sections as follows:In the first section, the paper implies the meaning and establishment condition ofadvance behavior. Advance behavior, also known as preceding act, should content thenext three conditions: first, the actor must be himself who has duty to act; second, thequicksand to legal interest is not only imminent but also realistic; last, there must becausation between advance behavior and dangerous situation, moreover, a criminal lawcausation.The second section delimits the scope of advance behavior. Because the meaning ofadvance behavior can hardly define its range, it is usually vague in practice. The authortakes four typical acts as examples for analysis. First, negative act is not advancebehavior. Second, justifiable defense cannot be treated as advance behavior because ofits legality. Third, criminal negligence may constitute advance behavior, and itconforms to the theory of anticipated probability. Fourth, intentional crime may beadvance behavior when criminal law does not stipulate consequential aggravatedcriminal. If stipulated, it is not advance behavior.In the third section of the study, the author lists and answers the problems on advancebehavior during judicial application. First, whether negative act caused by advancebehavior guilty or not is the distinction problem between criminal law and civil law.That means discussing advance behavior is criminal act according to the criminalconstitutive elements or civil act based on the tort law. Then the present paper explainsthe accusation problem as for advance behavior may conform to several crimeconstitutions since its scope’s complexity. And this part answers two typical questionsabout accusation:1. it is more persuasive convicting crime of intentional homiciderather than intentional injured resulting death form crime conformity perspective;2.analysis how to distinguish crime of abandonment and negative intentional homicidefrom points of dependence between actor and victim together with China’s criminal law evolution. The last part is the crime number question about negative act caused byadvance behavior. The author discusses advance behavior results the crime numberquestion from number of behaviors and legal interests infringement.