Research On The Previous Behavior In The Crime Of Omission

The antecedent act plays a "stubborn and suspicious role" in the history of theory.In current judicial practice,the absolute number of pre-emptive omission offences is not large,but the problems are mainly reflected in: recognizing legal acts as pre-emptive acts,recognizing negligent crimes as intentional crimes of omission,recognizing aggravated consequential offences as intentional crimes of omission,and recognizing non-dangerous acts as pre-emptive acts.These problems all focus on the scope limitation of qualified antecedent behavior.The scope of qualified antecedent behavior depends on the correct position,scientific method and appropriate specific path.This paper adopts the standpoint of substantive crimin allaw view,the method of criminal law dogmatics and the specific path of reflecting on the existing methods of restricting the scope of antecedent acts.The concept of substantive criminal law adheres to the idea of fairness and justice of criminal law and the protection of human rights.On the one hand,it must adhere to the doctrine of legality of crime and punishment,on the other hand,it must adhere to the concept of application of criminal law of "criminalization in form and delinquency in substance".The method of doctrine of criminal law can ensure the realization of the objective of substantive criminal law.On the one hand,it explores the generating logic of micro doctrine of criminal law,pays attention to the refinement of "national normative consciousness",on the other hand,it pays attention to the logical and scientific realization of the system of criminal law.The specific way to reflect on the existing methods of restricting the scope of pre-emptive action is the implemen tation of the doctrinal method of criminal law.This specific way needs to reflect on two issues.In general,whether the two conditions are sufficient to support the proposition of rest ricting the scope of pre-emptive action is the relationship between the two conditions.The danger creation theory confirmed by a large number of cases is the core logic of the structure of "antecedent act-danger-omission",and it is also the core idea of the concept of antecedent act as long as the acts without danger cause the danger of constitutive elements.However,the criminal law has the ultimate means.Why should legal acts and acts without danger be evaluated by the criminal law? The logic of the theory of legal acts can not be self-consistent.The theory of illegal acts is a more correct choice,but we should also explain the specific connotation of illegal acts and the reasonable reasons for the sudden change of illegal dangers to constitutive elements.The problem of criminal acts as ante cedent acts is that,on the one hand,the intent of omission is easily presumed,on the other hand,it is difficult to fully evaluate the illegality and guilt of acts on some occasions.Discussing the proper imputation theory of the prior act is to ask why the specific danger can be regarded as the work of the prior actor,which has gone beyond the theoretical boundaries of causation and entered the imputation theory.Recognizing that the danger caus ed by the prior act is the two premises of constitutive elements of danger and the prior act is the first one of illegal acts,the imputation is to solve the problem of how to make up for the difference between the danger of illegal acts and the danger of criminal law.Now adays,there are objective imputation criteria,dominant offence criteria and other criteria in the imputation theory of omission crime.The imputation of prior act is also discussed arou nd these criteria.The objective imputation criteria,the dominant offender theory and other criteria are not suitable for the imputation criteria of prior conduct.The explicit imputation criteria can only be based on the factual level,because the normative level is always interfe red by the value judgment factors.Only when the first act makes the victim lose the possibility of being rescued,the specific danger can be attributed to the first actor.The explanatory power of the theory must be tested by practical cases.The standard of excluding the possibility of salvage for illegal acts can explain the situation of the supervisory guarantor with prior behavior.The so-called guarantor of prior-action protection is not the guarantor of prior-action type in essence,but the guarantor of protection.It is more similar to the status of guarantor in danger,which should be denied.