The Research Of Pre-action In Negative Crime

“Negative crime”,which is characterized by act duty as essential element,can be classified into typical negative crime and non-typical negative crime.Compared to typical negative crime,non-typical negative crime appears to be more controversial.Especially for pre-action,which is a major source of non-typical negative crime duty,is debated and reviewed in academic circles from the very beginning.Just because pre-action’s legal basis and boundaries are controversial,it is difficult to use in juridical practice.As a judicial worker,I’ve seen different conclusions towards the same phenomenon in juridical practice just because the understandings of pre-action are different.These chaos have aroused the author’s interest of studying pre-action.This paper starts from three cases and shows that different understandings of pre-action in juridical practice led to different standards of application.It is also concluded from the cases that pre-action has different status and plays different roles under different theories.By summarizing the existing research results,we believe it is necessary to choose substantive obligation theory instead of formal obligation theory.And we take the equivalence of action and omission as the foothold,from which we conclude that the substantive legal basis plays a dominant role in the causal process of legal interest violation,and then affirm the guarantor status of pre-action.After confirming guarantor status of pre-action,the paper tries to focuses on the criterion of pre-action,and through analyzing the existing criterion and particularity of pre-action,we consider that it is scientific to define pre-action according to objective imputation theory.We get a criterion that pre-action must increase the risk,there is a risk correlation between the pre-action and the damage result,and the result is not caused by other objective factors,such as the victim’s self-harm behavior.At last,we try to put the criterion we have got into juridical practice...