Judgment Of The Guarantor's Status Of Advanced Behavior

The crime of act and the crime of omission are two basic forms of criminal law crime.The crime of omission can be divided into pure omission and impure omission.However,impure omission crime is the focus of criminal law research.In impure omission crime,the source of obligation is particularly important.German and Japanese research on the source of the obligation of non-real omission has undergone a transformation from the form-as-obligation theory to the substance-as-obligation theory,which has a guiding role in the study of the source of obligation in China.Besides the continental law system,the Anglo-American law system countries have begun to study the theory of the source of obligation.The general theory of the source of the obligation of impure omission in our country is the "four sources theory",that is,the obligation stipulated by law,the requirement of duty or business,the obligation arising from the legal act and the prior act.As one of the important sources of the obligation of impure omission,the prior act has not been stipulated in the general and sub-rules of the criminal law.Therefore,in many cases of omission,it is difficult for judicial staff to accurately define whether the case constitutes a crime or not,and because of the lack of corresponding legal provisions,the identification of the prior act of omission in our country is either lenient or narrow.It seriously affects the authority of criminal justice in China.In this paper,a case of intentional homicide in Song Dynasty is taken as a clue,and the basic situation of the case and the focus of controversy are briefly described.From this point of view,the problem that needs to be discussed in this paper,that is,the determination of the theory of guarantor's status of prior acts,is brought forward.The theory of guarantor's status is used to explain the obligation of action and to provide the basis for punishing impure omission.However,the theory of guarantor's status is seldom mentioned in the criminal law theory of our country,and more is the enumerative form as obligation.In the process of judicial practice,the punishment of impure omission offense which results in harmful consequences of omission is not only not invoked by relevant legal provisions,but also can not be supported by rational basis.Therefore,the study of guarantor status can further promote the theoretical development of impure omission offense in China,thus playing a positive role in promoting our legislation.