Not A Source Of Obligation

In researching of impure negative crime,the source of crime is fundamental and important.That is to say,the essential of impure crime of omission problem is the source of crime.The current theories non-action duty origins are hard to explain themselves.At the same time,researches in our country are just in the starting progress.There is “four origin” theory in our country.It mainly indicates that the source of action comes from duty written in the law,occupation request,law action and obligation generated by former action.The “four origins” just set duty origin in formal,which didn't deeply research innate character of duty origin,thus it shows stiff.With the developing of our society,and the need of new situation,these theories can't fulfill judges' need when meet new type cases.In comparison,non-action obligation research of abroad experienced from forming to substance,and coexisted of forming and substance at the same time.Substance duty theory researches non-action duty from two aspects,one is the symbiosis between actor and non-actor,another one is actor's control process to result.But,Substance duty theory is more or less obscure and lacks of consolidated standard which may easily make the source of non-action duty out of order augment.To punish omission on judicial practice occasion is that crime has action duty,but the criminal law does not set origin of action duty.So,to punish non-actor is lack of factual basis and law basis and need the judge to explain.Undoubtedly,it adds difficult on judgment and may easily generate different results within the same cases.To assemble and analyze the existing theory and complete it in a certain extent is very meaningful for solving judicial problem met in practice.Theoretical scholar has deep controversy on negative obligation and they had never stopped exploring the origin of action obligation.I consulted relative information before writing and found so many data on negative obligation.However,through checking recent articles and books I found them mainly focus on the two points of former action and morale obligation.This article starts with former action and combines form action duty theory and substance action duty theory as the origin of action duty.And recognize former action as one origin of act duty on condition of not violating evaluates one action twice times.Then it discusses how morale obligation affects the source of non-action obligation.First,to analyze distinction and connection between morale duty and law obligation.Second,to distinguish the view of rule of law can be the source of action obligation.Last but not the least,according to present scholar's view of it should involve morale duty into the source of non-action obligation,to analyze and evaluate it.Then draw a conclusion in the end that former action can be legal and also can be illegal,but it must come from law and is risks creation or elevated action.Besides,morale obligation generated by former action can not be act obligation in any occasion.