Research On The Previous Behavior In The Crime Of Omission

Previous behavior,as a controversial topic in theoretical history at home and abroad,has been playing a "stubborn and dubious role".Previous behavior is the actor’s previous act of creating a real and imminent danger or increasing risk levels,and the actor dominates this state of danger,and has the obligation to take measures to remove the danger or prevent the actual harm of the danger.In the case of inauthentic crime of omission,the obligation arising from the previous act is sufficient to satisfy the requirement that inaction and action have the same equivalence,i.e.,it is reflected in the fact that inaction and action equally violate the foundational norms of the constituent elements of a crime,and there is no question of analogous interpretation violating the principle of criminality.Therefore,whether it is the formal or substantive standard,it is still a logical ranking relationship,the value of the formal theory of obligation to act should not be denied,but rather it should be affirmed and valued,while the substantive theory of obligation to act can better explain the connotation and source of the formal standard.Under the dominance of formal law obligations,the controversy on previous acts has gradually shifted to the definition of the scope of previous acts,and the specific problems of previous acts in theory and practice have appeared,focusing on the identification of several types of specific acts,including legal acts,criminal acts and acts and omissions,as well as the problems derived from them that conflict with the choice of the path of the aggravated result offender.The study of the scope of the determination of previous acts requires a clear path of attribution of previous acts,and the study of German and Japanese criminal law on the determination of advance acts provides considerable reference value.The objective attribution theory provides clear and specific criteria for the establishment of previous acts.However,there are problems such as misplaced objects of imputation and risks not limited to increase;a formalistic problem of vague and broad standards of obligation violation;the social equivalence standard unifies the causal relationship between the previous act and the harmful result,and proposes to use "the cognitive standard of the general society or the special status of the perpetrator" as the basis for whether the possibility of the result can be increased;Although there is a problem that the definition criteria under the two types of dominant offense approach may be too harsh to unduly restrict criminal liability,the norms give the causal process between the production of harmful results by inaction a dominant effect in reality.For the current domestic criminal theory and judicial practice of two types of problems,first,three elements of advance acts in the causal chain of " previous act → state of danger →failure to perform the obligation to act → occurrence of harmful results" respectively(1)the dangerous state should be triggered and create or elevate the risk by the previous act of the actor;(2)the act of omission governs the cause of the harmful result;(3)there are no other unusual intervening factors leading to the severance of the causal chain.Moreover,the establishment element is used as the basis for judgment,and the requirements of equivalence and the principle of "crime and punishment must be judged by law" are used as the legal basis for judging whether specific acts can give rise to the obligation to act,which affirms the reasonableness of legal acts and intentional crimes constituting previous acts;the scope of previous acts is limited to acts;and the conflict between the determination of previous acts and the aggravation of results is solved by treating them separately based on whether there are provisions of the criminal law for the aggravation of results.