The Source Of Crime Impure Nonfeasance

In the mainland of China, the wide focus on the crime impure nonfeasance of academia and practical circle can be traced back to the intentional homicide of Song Fuxiang in1994. The crime impure nonfeasance of that kind often leads to great social attention and discussion. The defendants in those cases tend not to actively behave just like which is prohibited by the provisions of the criminal law. Which caused serious harm in those cases is their negative omission. That is so-called the crime impure nonfeasance. Owing to the lack of guidance and theoretical support, the judicial practice cannot reach an agreement on the standard of identification. There exists sharp difference in theoretical circle as well, especially in the source of obligations. This thesis will remark on the source of obligations in crime impure nonfeasance, based on the long-lasting argument between formal and substantive source of obligations, trying to put forward my own opinions which may contribute to the theoretical research and judicial practice.This thesis, besides the introduction, can be divided into four parts.In the introduction, firstly, the author makes a brief presentation to the concept of crime impure nonfeasance, the concept of obligations to behave and the reason why the problem of the source of obligations emerges. Then the author concludes the current situation and the existing problems in judicial practice, by the example of the intentional homicide of Song Fuxiang. After contrasting the judicial practice and the theoretical points, the author puts forward the main topic how to identify the thesource of obligations in crime impure nonfeasance.The first part is about the basic problems of source of obligations. It is necessary to make it certain that what the obligations mean and what the nature of the obligations is. The author briefly summarizes the different views on the above two questions and then tries to give my own opinion. In the meaning of the obligations, the thesis adopts the view of domestic scholars, that obligation is which demands the subject to act or not act. In the nature of the obligations, the thesis adheres to the legal attribute of obligation which means that the pure moral demands cannot become the source of obligations. The comprehension of basic problems will be the foundation, based on which the following discussion can be made.The second part is about the argument between formal and substantive source of obligations, the main two theories in the history to solve the problem of the source of obligations. The difference between above two theories radically comes down to the methodology. The formal theory determines the source of obligations by the way of enumeration, making a clear formal list of which can arouse the duty. However, the substantive theory emphasizes the reason why someone should burden the obligations to behave, in which the supporters tend to prefer description on the essence. Based on all above, it is vital and valuable to summary the ideas of those two theories.The third part is the evaluation on the substantive theory of the source of obligations. The paper holds that, the substantive theory itself has some irreconcilable contradictions. In author’s opinion, the contradictions can be concluded into two problems. The first one is related to the theory prerequisite. The second one roots in the misunderstanding on the relationship between the source of obligations and the problem of equivalency.In the final part, the author puts forward the viewpoint that the formal theory should be sustained. Based on above statement, the author comes to a further argument that the formal theory itself needs improvement and perfection in that even among the scholars who hold the formal theory, there still exists difference. Therefore, the paper points out the principle during the perfection on the formal theory with the assistance of the meaning and origin of obligations to behave concluded in preceding arguments. By sticking to the principles, the paper tries to make it clear what the dfinition of formal obligations to behave is and what boundary the obligations should have.