Research On The Source Of Act Obligation To The Negative Crime

Active crime and negative crime both belong to basic forms of crime.The modern criminal law science system has negative crime at its core,so how to integrate active crime into the system is a problem facing the current criminal law academic circles.As an essential part of active crime and a bondage connecting omission and commission,the active obligation exists with its own significance and is worthwhile to study.The theory of active crime appeared in the 19 th century.Since then,the source of active obligation has been a controversy theoretically and practically.The past 100 years or so saw emergence of different theories and ideas.In order to build legal society based on unity and mutual help,and to realize fairness and justice in legal terms,the legislation trend of active crime has kept on expanding.However,the source of the active obligation is still a research gap in the criminal law.There are few legal bases for judicial officials to adhere to.The civic awareness is lacking.Juridical practices are faced with tricky problems in coping with relevant cases.Therefore,it is imperative to deepen the research into the active obligation.This paper discusses several theoretical and practical disputes about the active obligation.This paper consists of four parts.Below is a brief introduction of each part:Based on the source doctrines of active obligation at home abroad,controversies between form source doctrine and essence source doctrine were illustrated in the first part.Then,these two doctrines were respectively evaluated and analyzed.The author held that the form source doctrine existing in the form of frame system was essential.The trichotomy of form seemed more reasonable than the quartering of form.In addition,the author deemed that it was required to comprehensively take into consideration the form source and essence source as well as combine the fact element and normative element to judge active obligation.In the second part,with respect to explicit legal provisions of active obligation source of negative crime,extension and constitutional obligation regarding the word “law”,these two controversial issues,were discussed.Meanwhile,explicit legal provisions about the judicial determination of active obligation were further analyzed by citing the case of “provoked suicide”.Two problems were studied in the third part.One was whether business requirements of position should be independently regarded as source of active obligation in legal explicit provisions.The other was whether discussion of position business was confined to legitimacy and legality.Moreover,the active obligation of position business requirements was briefly analyzed here based on the case of “a woman teacher murdered by 78 cuts in Gansu”.In the fourth part,antecedent act was discussed in terms of its reasonable status,scope limitation,effectiveness of contract behavior and moral obligation.The author maintained that both intentional offense and criminal negligence constituted antecedent acts.Furthermore,antecedent act also included negative crime and unaccountable behavior.Contract behavior,as one of legal behaviors,was affiliated to antecedent act,without any necessity to take it as independent active obligation source.Meanwhile,the effectiveness of contract would not affect active obligation.Though the contract was invalid,there were active obligations in some circumstances.The key problem was the contract,by combining essence doctrine of active obligation,should be viewed under the framework of the criminal law rather than treated in isolation.The case where a taxi driver abandoned an old man on the way was adopted to demonstrate the argument.Consequently,relying on some cases of “refusing to help others in troubles” as the breakthrough point,the author put forward seven reasons to argue that moral obligation could not be considered as the active obligation source of negative crime in China.