Research On The Status Of Guarantor Of Advanced Behavior

In the theory of impure omission crime,the status of the guarantor of the prior act has been controversial all the time.Although since the nineteenth century,the prior act has constituted three forms with law and contract as the source of obligation,after more than a century of development in the theoretical circle and judicial practice circle,the identification,specific scope and imputation of the status of the guarantor of the prior act have gradually exposed many problems.However,due to the complexity of the status of the guarantor of the prior act itself and the ambiguity of the boundaries,there has not yet been a unified conclusion on the criteria,the specific scope and how to impute the responsibility of the criminal of the prior act in the theoretical circle.In addition to the introduction and conclusion,about 44000 words.Its contents are summarized as follows:The first part is an overview of the basic theory of the status of the guarantor of the prior act.Starting from the jurisprudential origin of the antecedent act,this part mainly introduces the meaning and status of the antecedent act,expounds the relationship between the status of the guarantor and the obligation to act,further clarifies the relationship between the status of the guarantor of the antecedent act and other types of guarantor,as well as the relationship and difference between the status of the guarantor of the antecedent act and the moral obligation,and paves the way for the concrete development of the status of the guarantor of the following antecedent act.The second part focuses on the analysis of the practical dilemma of the status of the guarantor of the prior act.With the deletion of the general provisions on the status of the guarantor of prior act in German and Japanese criminal codes,the theoretical circles have made further reflection and review on the necessity of the existence of the status of the guarantor of prior act.The voice of denying the status of the guarantor of prior act has become higher and higher.Based on the analysis of the views of affirmative theory and negative theory,this paper puts forward the basis of affirming the existence of the status of the guarantor of prior act.According to.In judicial practice,the trend of expanding the application of the status of the guarantor of the prior act is obvious.This article combines with the specific cases in judicial practice to analyze one by one.The third part defines the scope of the status of the guarantor of the prior act,focusing on the scope and boundaries of the prior act,in order to avoid the expansion of the application of the status of the guarantor of the prior act in judicial practice.Drawing on Roxin’s definition criteria of prior action derived from objective imputation theory,this paper reasonably limits the connotation of prior action based on the criteria of danger,relevance and exclusion of other objective imputation,and deeply analyses and demonstrates whether prior action is limited to illegal acts,whether it contains criminal acts,and whether it includes omission,which have puzzled the theoretical circles for a long time.The fourth part probes into the responsibility of the guarantor’s status in advance.Firstly,this paper introduces two new ideas of the academic circles about the status and responsibility of the guarantor of the prior act,and makes a concrete analysis and evaluation of them.It draws a conclusion that neither of the two theories can be used to solve the problem of imputation of the crime of omission of the prior act in our country.Then,using the theory of domination of criminal facts,it expounds that the omission after satisfying the prior act has a decisive influence on the criminal process and result.Only by objectively having the possibility of avoiding the result and subjectively having the will to dominate the criminal facts can we make the act equivalent to the omission,and then impute the offence of omission of prior conduct.