On The Advance Behavior In Omission Crime

The antecedent behavior has special significance in the theory of impure omission crime.As an important part of it,the antecedent behavior not only improves the theory,but also the most controversial part of the theory.The concept of antecedent behavior,guarantee the status of human type,establishment conditions and scope,and so on,has been repeatedly discussed and studied by scholars from all over the world in the more than 100 years after it was put forward.If the above questions can be answered theoretically,it can not only enrich the theory of antecedent behavior and perfect its theoretical system,but also have positive significance for judicial practice.Therefore,this paper will sort out various theoretical viewpoints and make an evaluation on the above problems,put forward their own views and make a reasonable explanation,hoping to clarify the concept of antecedent behavior,affirm its status to guarantee the human type,determine its establishment conditions and clear its scope,with a view to giving a modest contribution to the theoretical and practical circles of criminal law.In addition to the introduction and conclusion,this paper is divided into four parts:The first part combs the historical origin of the antecedent behavior.Looking at the development history of the antecedent behavior theory,German scholars first studied it.From the Aquilia Law in ancient Rome to the theories put forward by many scholars as the source of the obligation in the 18 th century,and then to the jurisprudence of the 19 th century that the antecedent act can produce the obligation,the formal source of the obligation includes the antecedent act.Secondly,it makes clear the concept of antecedent behavior,and scholars have different understanding of its concept.This paper first negates the distinction between antecedent behavior in broad sense and narrow sense,then analyzes different definitions to point out its mistakes,and finally defines antecedent behavior.The second part establishes the status of antecedent behavior to guarantee human type.This paper dialectically analyzes this problem from two angles: positive and negative.The theory of affirmative antecedent behavior guarantee human type is divided into formal guarantee human type theory and substantive guarantee human type theory,the latter also includes social group relation theory,function theory,trust principle,dominant theory and so on.At the same time,Germany and Japan have written the antecedent behavior into the criminal law,South Korea,China’s Taiwan region also confirmed the status of antecedent behavior in legislation.Of course,some scholars do not recognize the status of the antecedent behavior to guarantee the human type,mainly violates the legal theory of crime and punishment,the theory of moral obligation negation and the theory of total negation and so on.Legislatively,Germany and Japan have also changed positions,with the provisions on antecedents being deleted successively.But these can not deny the status of the antecedent behavior,this article immediately put forward the reasons for refutation and the reasons for its status.First,the first act guarantees that the human type conforms to the legal principle of crime and punishment,and from the point of view of the open constituent elements,the obligation arising from the first act can become the constituent element of the crime;the first act guarantees that the human type has predictability conforms to the principle of relative clarity;the omission crime caused by the punishment of the first act is based on the requirements of the spirit of legislation and conforms to the principle of certainty.Secondly,although the antecedent behavior is rooted in morality and habit,its essence is legal behavior,moral evaluation can not be evaluated on behalf of law,and moral obligation is not equal to legal obligation.The third part defines the conditions for the establishment of the antecedent act from the aspects of form and substance.From the point of view of form,the antecedent act must be done by the perpetrator himself;the antecedent act must put the legal interest into a dangerous state,which must be objective and criminal;the antecedent act causal relationship between the antecedent act and the dangerous state,that is to say,the antecedent act must directly cause the dangerous state which will cause the legal interest to be infringed;the perpetrator must have the possibility of relief to the dangerous state,and the author puts forward the judgment on the criterion of "can ",the way of performance and the degree of performance.Standards.As the supplement of formal elements,substantive elements mainly revolve around the legal interests protected by criminal law.Whether an act is established or not should be judged by combining the elements of form and substance,but the elements of form should be applied first,and then the elements of substance should be applied if the purpose is not achieved.The fourth part defines the scope of the antecedent act from three aspects: whether it includes legal act,whether it includes criminal act,and whether it includes omission.First of all,the author analyzes the merits and demerits of the four main theories —— negative,positive,concrete and self-responsible theories about whether the antecedent behavior includes legal behavior,and analyzes four kinds of reasons for the violation of the law,and thinks that the danger of self-defense and social permission can not be the first act,so that the legal act can be the first act under certain conditions.Secondly,the analysis of the advantages and disadvantages of the three theories —— affirmative,negative and compromise,whether the antecedent act includes the criminal act,confirms that the criminal act can become the antecedent act,but it should be reasonably limited.There are three views on the criterion of limitation in the theoretical circle.After analyzing each other,the author puts forward his own criterion of limitation based on negligence and intention: the act of intentional crime can be an obligation arising from the act of antecedent;the act of antecedent can not include the act of negligent crime and thus cause the crime of omission,but it can be caused by negligence.Finally,it is certain that inaction can also become a leading behavior from the perspective of behavior and cause.