A Study On The Behavior Of Non - Action In Crime

Negative crime has been the focus of domestic and foreign criminal law theory. As a source of the legal duty to Act in the negative crime, the advance behavior has been generally recognized by scholars in the theory circle of criminal law. However, there is a huge debate in the theory on its reasons, conditions and scopes. And it is difficult to do an accurate identification about the advance behavior in the judicial practice. There is some foreign legislation. Although some scholars have put forward legislative proposals in China, but it has not yet to make the relevant provisions in the criminal law of our country. In this paper, the related theoretical issues are discussed on the basis of previous studies. And the related legislative suggestions are proposed to criminal law of our country. The thesis mainly has five parts:Firstly, the author defines the concept and theories orientation of the advance behavior. Because the development of the theory about the advance behavior are closely related to the negative crime, on the basis of analyzing the historical evolution of the negative crime, the author put forward the concept and theoretical orientation of the advance behavior in the system of the negative crime.Secondly, the author demonstrates the theoretical basis about the advance behavior as a source of the legal duty to act. The author analyzes the positive theory and the negative theory on the basis, the author agrees that as a source of the legal duty to Act the advance behavior the advance behavior is the proper meaning of criminal law. The identification of the advance behavior is not the application of analogy. And it does not violate the principle of legality of antecedent actions. And it precisely embodies the mission of criminal law to punish crime and protect the human rights.Third, the author determines the establishment conditions of the advance behavior. It needs to be identified the advance behavior after the theoretical orientation and demonstration of it. However deciding an act as the advance behavior, not only needs to meet that the action of the perpetrator himself is enough to endanger others’ legal interests which implements the dangerous state, but also that he has the obligation and ability to save the victim. Otherwise, the perpetrator does not implement relief obligations can not be considered as a crime of omission.Fourth, the author determines the scope of the advance behavior. When the scopes of the preceding acts are identified, not without any arbitrary restrictions to expand, but there are strict limits conditions. The advance behavior is not only included the illegal act. The legal action and the criminal behavior can be identified as the advance behavior. Not only the positive behavior and the responsible behavior can be the advance behavior. And it also includes the negative behavior and the no responsibility behavior which is no subjective intent or negligence.Finally, the author provides some advices on the legislation about the advance behavior in our country. My argument is the point of theoretical value, practical value and social value. The author analyzes the suggestions of scholars and doing an in-depth study of the specific provisions in other countries about the advance behavior. So the author puts forward some suggestions about the legislation mode of the advance behavior in our country.