A Study Of Preceding Behavior In The Offense Of Non-typical Omission

Preceding behavior, also named previous danger behavior, is generally regarded as one of sources of obligation in the offense of non-typical omission. Preceding behavior could result to obligations, because preceding behavior causes serious danger to legal interest which is protected by criminal law. In obligation theories, preceding behavior is always a focus attracting attention and discussion in the academic field of criminal law basing on its unambiguous characteristics in function and substance. Compared with other sources of obligation, preceding behavior can fill the limitation in function brought by other sources of obligation, make a broad range of application, and make significant contribution to criminal law for provide rigorous protection to legal interest. Meanwhile, there is still a debate whether preceding behavior could lead to obligation in academic field. The scope of preceding behavior would be difficult to be defined if preceding behavior was only recognized in form but without any restriction, which might result to obligations extending unreasonably. Therefore, for applying preceding behavior theory rationally, first of all, the question whether preceding behavior could be a sources of obligation in offense of non-typical omission should be examined, then discussing how to restrict preceding behavior, finally exploring specific range of applying preceding behavior. This dissertation will follow this logical structure, and analyze these three basic questions of preceding behavior mentioned above.This dissertation is divided into three sections besides introduction. The total words are over 22,000.The first section pays attention on discussing the debate that preceding behavior is regarded as a source of obligation. After the theoretical background of this question, on the bases that scholars keeping various sides criticize that preceding behavior is a source of obligation from three aspects: the attribute causing obligation, causality process, and criminal policy, this essay also analyzes from these three aspects, for clarifying that the nature of causing preceding behavior is the preceding behavior actor who hold legal obligation does not loss the control of causality process and preceding behavior is still necessary in criminal policy. Which lead to the result that the status of preceding behavior regarded as one of sources of obligation should be accepted.The second section focuses on the restriction to preceding behavior of offense of non-typical omission. This essay firstly clarifies the necessity of restricting preceding behavior in this section, then introduces major theories in restricting preceding behavior from China and foreign countries. After that, the opinion how to restrict preceding behavior will be raised. The restriction should be considered from the nature of danger caused by preceding behavior and the causality between preceding behavior and the danger. Lastly, the constitutive requirements of preceding behavior’s nature could be defined, that is preceding behavior conducted by actor directly and exclusively, and preceding behavior causing objective, urgent and clear danger which is not allowed by criminal law.The third section discusses the specific scope of preceding behavior. Different views about preceding behavior scope existing in theory will be analyzes, including whether preceding behavior is legal action, whether preceding behavior could be offending action, whether preceding behavior could be non-obligation action, preceding behavior is omission. The result will be brought up that all actions could lead to preceding behavior except intentional crime.