Research On The Theoretical And Practical Problems Of Prior Behavior In Criminal Law

The prior behavior is the act that the actor has previously carried out,which makes the legal interest fall into a dangerous place.However,there is still a great controversy in the academic circles about its specific scope,which leads to the dilemma of judicial practice.From the perspective of previous cases,there are many problems,and the following ones are the most significant: first,the concept of prior behavior is vague,and the judgment of which is too arbitrary when applied,which leads to confusion with “constitutive act”.And some of the judgments do not even indicate which act is responded by the actor.;second,the scope of prior behavior is expanded too much.The behavior of safeguarding and daily life is also considered to be prior behavior,which may cause unreasonable restraints to civil liberties.In addition,there are also judgments that fail to take the relationship between the articles of law into account when determining the prior behavior,which directly sentence the actor and lead to unfair consequences.In the theory of criminal law,“ whether a valid act can be determined as a prior behavior”,“whether a crime can be established as a prior behavior” are the focus of the debate.However,in traditional theory,such discussion has not made a substantive breakthrough.The theory classifies the source of obligations as law,special requirements of jobs,legal acts and prior behaviors.Yet the obligation established by other law may not be admitted by the criminal law,and the ambiguity of the concept of “legal act” also makes the prior behavior fall into the question of moral obligation.In this guard,we should turn to the view of substance to judge the actor's obligation,and take reasonable methods to further limit the scope of prior behavior.In contrast,the theory based on “the actor's control of the cause of the result” should be insisted on,and it is helpful to define the scope of prior behavior.However,such theory is still not perfect.In order to better explain the cause of the obligation and make the judgment result more compatible with the law in China,it is necessary to further amend it.According to this theory,an obligation is divided into protective guarantor obligation and supervisory guarantor obligation,while the prior behavior should be strictly limited to the latter,which should not be confused with other obligation sources,so as to establish the preliminary limit of the scope of prior behavior.After determining the system orientation of the prior behavior,we can further limit it by referring to the relevant principles of the objective attribution theory,yet we should emphasize that the prior behavior is not a constitutive act,and the objective attribution theory cannot be applied without any conditions.There should be some corresponding modifications of the theory.Specially speaking,the prior behavior can only lead to positive obligation when it creates a risk prohibited by law.So the act approved by law should not be determined as the prior behavior except for emergency avoidance,which has its judicial specialty.For the same reason,the crime can be prior behavior,but only when there is a normal relationship between the specific mode of the criminal act and the dangerous state of the victim,can it trigger the positive obligation of the actor.At the same time,when judging whether the criminal act establishes actor's obligation,we should fully coordinate the relationship between different law,compare illegal connotation,and try to carry out the justice in particular cases.Finally,when the danger or result should be undertaken by the victim himself,the actor should not bear the criminal responsibility of nonfeasance crime.