Research On Executive Act

The problem of executive act have rich content, in the criminal system occupies an important position. On the executive act, civil law, especially in Japan, Germany, the system has in-depth analysis and research. In the long theoretical discussions, the different schools, different scholars, had formed many theories based on their different positions, such as the meaning of executive act, the recognizes of beginning, the special form of behavioral,,revealing the meaning and content of executive act from different aspects, which established the different status and functions, in the practice acts of crime and punishment discretion in determining, greatly enriched the theory and practice to executive act. From the act of the domestic research on the executive, the main textbook in scattered parts of the Criminal Code sections, and mainly in Japan, Germany, represented by the traditional civil law within the framework of criminal law theory's, and the scope of analysis is limited to a single the establishment phase of the crime committed, for the behavior started, the executive of the special form of act and other important issues related to small. Therefore, the domestic ongoing research and academic discussion is still insufficient, the analysis and research on the executive act, in terms of breadth and depth needed from further strengthened. This paper focuses on the executive of actions, from start to the concept of the executive act, the meaning of the implementation of behavior, the nature and function, classification to be described, has carried on the thorough ponder about the beginning of executive act and the special shape. Actual content including following several parts:The first part is a basic understanding of the executive act. After elaborate in two different angles with Substance Doctrine and Formalism about understanding of the concept on executive act, Proposed that executive act is the author implements conforms to the criminal law to divide, then stipulated some kinds of crime constitution important document and has the realistic risky behavior to this constitution important document preinstall's law profit violation. And so export the three important characteristics:provisions of criminal law, constitution important document necessary and realistic risk, its form is characterized by the provisions of criminal law, the real feature is a direct infringement of legal interests, realistic risk.At the same time, the executive act can be possible to divide into executive act alone and executive act together, sole to executive act and the multi-skill together executive act, to executive the action directly and to executive the action indirectly and so on different type. Executive action also to have the crime function, discretion of punishment function, boundary function and same other functions.The second part is about the discrimination of executive action and the related behavior. Including the executive action and the harm behavior, the executive action and the prepare behavior, the executive action and help behavior. About the discrimination of the executive action and the harm behavior, their connotation has the place which the trifle superposes, but they are different in the crime discusses in system's status and the function, the connotation and the extension also different. About the discrimination of the executive action and the prepare behavior, in the around connection, both display in the crime developing process for the time, but their legal status and the manifestation different, to the law profit violation degree dissimilar, prepare the behavior in the punishment aspect usually to executive act be lighter. About the executive action and the help behavior discrimination, help behavior to belong outside of the executive action, is one kind of must executive act. Generally thought that the help behavior can promote to implement the executive action.The third part is the beginning of executive act. Beginning is the start of t executive act, this behavior is creates the direct violation to the law profit, this kind of violation has the risk. The dangerous judgment had the objective danger saying, subjective danger saying, the concrete danger saying and so on viewpoints. In overseas, about the theory which begins has the objectivism, subjectivism, the compromise said and so on different viewpoint, the home has formed the form objectivism and the substantive objectivism argument in the objectivism foundation, but if the form objectivism and the substantive objectivism unify may avoid related beginning the theory flaw, the limits with the beginning of executive act will be very good.The main content of chapter IV is about of special shape of executive act. The executive action has the basic shape, but also has such as the guilty of multiple acts, the common principal offender and the negative crime and same other special shapes. Guilty of multiple acts is consistent with the implementation of the perpetrator of a crime, elements of the implementation of behavior, including more than two different types of non-implementation of the independent acts of convicted crime.The most basic standard of recognized the guilty of multiple acts is commit conforms to the criminal law minute, if have not the provision of law stipulation that the act is not the guilty of multiple acts, simultaneously, avoid repetition appraisal.The common principal offender refers:two or above authors, based on executive intentionally together, in the implemented stage combined action in the crime to implement result one kind of crime shape, which has conformed to the crime constitution important document to implement the behavior, and shared together the result of executive act. In the common principal offender implemented the behavior request to have together the implementation behavior intentionally and implements together has executive the action. As for conspires actually has not participated or not shared the executive action is not the common principal offender.The reason free behavior is the author intentionally either the error enables itself to sink into the limit criminal capacity, which or in the non-responsibility ability condition, the control and identification ability reduce or lose, and implemented under this condition has conformed to the criminal law stipulation crime constitution important document behavior. The reason free behavior is not the reason behavior should be the result behavior.The negative crime means not to have to implement the behavior which in the criminal law standard requests to implement. Its voluntary origin are many, but the establishment of the negative crime, does not mean, so long as the author does not fulfill the legal duty to constitute the crime on the necessity, only then this kind of did not take arrives at the situation which needed to punish can be able to be called negative crime.The conclusion part of this article, reiterated the main content of this article, has pointed out the deficiencies in the wording, and hoped under the big background of the rule of law, the topic of executive act can be able receives more attention in the theory and the practice.