Discussion On The Antecedent Act Of Omission Crime

Omission crime is a very important form of crime, which refers to the actor has some sort of obligations because of certain reason, but fails to fulfill it that he has the ability to perform, leading to that legal interests protected by criminal law are severely damaged; omission of the perpetrator is the same as implementing the crime, so it deserves the penalty. Omission crime theory is an important part of the theory of criminal law and also has a very high significance for criminal justice practice. Research on the omission crime theory has become an important part of the study of criminal law in the twentieth century. Among them, the most central theory ought to "study on the source problem of obligation". The German scholar put forth the "guarantor theory" with the person bearing an obligation to be "guarantor"; Chinese scholars put forward "the three sources study" and "four sources study" in accordance with the reason producing the obligation combined with the actual situation in our country. At present, several domestic and international criminal laws have the relatively unified understanding of other obligation sources- laws based obligations, obligations based on duties and obligations generated by legal acts; theoretically, there is a relatively large dispute about the antecedent act theory, and the current academic research is still relatively scarce.As the research center of omission crime, foreign scholars classify antecedent act as one type of omission crime guarantors, capable of producing guarantor obligations. In recent years, China’s criminal law academics also has strengthened the antecedent act of omission crime research and formed very rich theoretical research achievement, but whether our general criminal law or sub criminal law, there is no regulations about the antecedent act of omission crime, which causes a lot of obstacles to the practice of applying the law to the criminal justice; in many cases about omission crime, the judiciary is difficult to make clear definition about whether the case constitutes a crime. Due to the lack of appropriate laws, the current identification of the antecedent act of omission crime in China has a serious risk of polarization, either too broad or too strict, causing serious damage to the unity and authority of our criminal justice. For this reason, the author believes that the research on the antecedent act of omission crime is very necessary and has a very profound theoretical significance.Omission crime is an important research content in the world criminal law academics in nearly a hundred years, and as one of the omission crime guarantors, the antecedent crime constitutes an important source of obligation of omission crime, and has always been paid attention to by the foreign criminal law; it has an important role in the theory study of criminal law of our country, and as an indispensable part of the criminal law theory, it should be systematically and clearly specified. As an important source of obligation of omission crime, the antecedent act is significantly different form other forms of obligations sources; other forms of sources more or less are involved in the relevant laws, but the antecedent act cannot be found the relevant provisions from any law; it is undoubtedly blank in terms of legal norms; if the antecedent act lacking legal provisions is applied purely to judicial practice, it will lead to that the ordinary people strongly question legal certainty and predictability. To strengthen research of the antecedent act of omission crime has high theoretical value to complete our theory of the crime, and also can lay a solid theoretical foundation for our criminal law to make clear definition of the provisions of the antecedent act of omission crime.Based on this, the paper tries to start from several aspects of the theoretical foundation, the establishment conditions, the scope definition, as well as its difference between the act, aggregated consequential crime and other types of guarantors, in order to improve the theoretical system of our country’s omission crime and provide guidance for criminal judicial practice. Introduction of this article talks about the background of the topic, research purpose and meaning, as well as the overall study overview of the antecedent act of omission to lay the foundation for a few chapters later in this article; the first chapter mainly makes clear the various views and reasons for the the antecedent act guarantor to insist and shake the status based on the theoretical foundation of the status of the antecedent act guarantor, and eventually puts forward the author’s own views. The author believes that our country should adhere to the antecedent act in legislative and judicial practice; the antecedent act theory has great significance for improving our criminal law theory and for constituting a crime theory system in particular; the second chapter starts from the establishment conditions and range of the antecedent act and makes in-depth analysis and demonstration about whether omission can constitute the antecedent act; whether criminal conduct could constitute the antecedent act; whether the lawful act can constitute the antecedent act, and non-responsibility act can constitute the antecedent act to better determine the conditions and scope of the antecedent act; the third chapter of this article mainly distinguishes problems easy to be confused with the antecedent act in the theory and practice, such as: similarities and differences with the antecedent act and acting, the antecedent act and aggregated consequential behavior, as well as the antecedent act and other guarantor types, in order to better distinguish it with other similar acts and situation; conclusion of this article will present preliminary recommendations on legislative provisions of our antecedent act, including: making the general provisions of the Penal Code by learning from other countries’ experiences and making specific provision in the Criminal Code in General as for the content of the law about the antecedent act. To study on the basic theory of the antecedent act is of great importance for criminal legislation and criminal justice in our country.