Research On The Preemptive Behavior In Crime

Advance behavior has always been an important part of the study of criminal theory.The research on the antecedent behavior can not only better grasp the non-acting crime as the source of the obligation,but also enable the judiciary in our country to carry out the practical work better in the course of the concrete practice.The research process of retrospective antecedent behavior theory has always been more or less controversial.The purpose of this paper is to analyze and discuss these controversial issues in theory and put forward the own views of the author.On the basis of the theory of first action,it provides a clear identification standard for the first action.Hoping that it will provide some help to criminal law theory and judicial practice.In addition to the introduction and conclusion,the content of this paper is as follows:The first part is short review of the development and concept of the antecedent behavior.From the perspective of the historical development of antecedent theory,Germany first studied antecedent theory in the continental law system,and made antecedent become one of the three guarantors through the support of precedents.Subsequently,the Japanese criminal law community also began to pay attention to this field,and our country’s research on the theory of advance behavior is relatively late.Under the influence of continental law system,some countries of Anglo-American law system have also carried out research work in the field of antecedent behavior.Scholars have different views on the concept of advance behavior.By combing through the opinions of scholars,they put forward their own views and believe that antecedent act refers to the previous act carried out by the actor that may cause damage to the legal interests protected by law.When the dangerous state occurs,the actor must fulfill the corresponding obligation to prevent the dangerous result from happening.The second part is an introduction to the controversy of the predecessor as a source of obligation.In the theory of affirmation of the behavior as a source of obligation,it mainly includes the form of obligation theory as the theory of obligation and the essence.The form of the obligation has a three-point form of the German form,the "three sources of the country","four sources" and "five sources" and so on.There are quite a lot of theoretical opinions on the theory of obligation,such as the concept of substantive violation of law,the theory of living community,the theory of function,the relationship of dependence and trust,the theory of organizational jurisdiction,and the only statement of pre-hazard behavior.Although scholars have different views on the source of obligations,the first act has an important position both in form and substance.Of course,there is also a denial of the status of the guarantor of the prior act in the academic world,and some countries have a reservation on the preemptive behavior in the specific criminal law provisions.The author puts forward his own views on scholars who believe that the theory of prior behavior will lead to unclear moral and legal boundaries,violation of the principle of legality of crimes,and the issue of repeated evaluation.It also makes a reasonable explanation for the reservations made in the legislation on the pre-emptive behavior,and affirms the theory of the pre-existing behavior,and considers that it is no problem as a source of obligation for impure or not as a crime.In order to better analyze the premise of the act of conduct,the formality of the form as an obligation and the substance of the obligation can be considered together and perfected as a source of obligation.The third part is to define the scope of the antecedent behavior.Through the theoretical analysis and the analysis of specific cases,it is believed that the antecedent act contains legal acts,but justifiable defense is excluded.The first act contains no controversy about the general illegal act,but for the unscrupulous act in the objective violation,the unscrupulous act can be the first act.The advance act should also include negligence.For crime become leading behavior of academic controversy,and proposed own view,think in the results of such for a crime should be in the results of such evaluation,when a person’s behavior as a result of the provisions of the criminal and the aggravated serious consequence occurs,will hold its first behavior caused by not as criminal responsibility.By introducing the disadvantages of inaction as the antecedent behavior,negation can be the antecedent behavior.The fourth part is to specifically identify the predecessor behavior.By enumerating four cases,it is analyzed whether the behavior of the actor in the case is an advance behavior,and then sums up the common points in the case,and concludes that it is necessary to determine whether a behavior is an advance behavior or not.The elements are the behaviors that pose danger to the specific legal interests protected by the criminal law,the dangers are obviously increased,and they will immediately become actualized and harmful.The second is to accurately grasp the basis of the obligation and discern the difference between the preceding behavior and other obligations.Only in this way can we better identify the predecessor behavior.