I have won the title of "lawyer industry civilized unit in Jiangsu province"
The Justice Bureau of Yancheng City rates the director of the city's law office to visit me
I have been awarded the "65" middle term advanced collective title of Nanjing
Director Liu Hong was invited to give a special lecture on the units directly under the Nanjing Municipal Health Bureau
All lawyers learn "four in" the spirit of the plenary session
Jiangsu Liu Hong Law Firm held a series of training lawyers
On the Obligation of Non - action as Crime
As an obligation is not the core of crime, it reflects the essential characteristics of the basic crime and the essential elements of the crime. What is the basis of the obligation or the source of crime? There are many different views in our criminal law academy. Representative mainly concentrated opinions about: (1) three sources said. The sources that are not considered as specific obligations are: legal express provisions, duties, or business requirements; the perpetrators of previous acts. (2) four sources said. And some that should include: the law expressly as obligations; duties or business requirements as obligations; legal obligations arising from; acts of the first act as a result of obligations. And some of the "contractual obligations" to replace the above-mentioned view of the "legal action caused by obligations." (3) five sources said. As a basis for the obligation, in accordance with the provisions of the spirit of our criminal law, can be summarized as the following five aspects: the provisions of the provisions of the law; duties and business requirements; behavior of the first act; voluntary commitment to a particular obligation; including specific obligations to fulfill the requirements of social ethics at the occasion. (4) Many sources include: in accordance with the obligations of the law; in accordance with the legal acts (such as the contract, no management) obligations; good faith on the obligation to inform; customary protection obligations; managers guardian obligations; The obligation to act or the obligation to do so; an emergency relief obligation;
In view of the above points and exposition, the author thinks that the four sources are the general theory of the criminal theory of our country. The "three sources" will be excluded from the obligations and major moral obligations arising from legal acts. The author argues that with the increasing socialization of production and the increasingly complex social relations, some acts can only be evaluated by virtue of the moral mechanism to meet the needs of social civilization and the progress of the times. It is difficult to adapt to the development of the times and the progress of society to the extent that the obligations prescribed by other laws recognized by the criminal law are, to a certain extent, Under certain conditions, a major moral obligation should be included as a source of omission as an obligation and legally made. On the basis of that, the source of non-crime as an obligation includes the following:
1. The obligations expressly provided for by law.
Among them, "the obligations expressly provided by the law refers to the national constitution, tax law, marriage law, civil law and other laws, administrative regulations, rules and regulations set by the various obligations." Here, not any legal obligations can become criminal law Not only as the basis, only other laws and regulations of the obligations recognized by the criminal law, is the basis of the legal obligations. The express obligation of the law as a duty is not a crime as a major source of obligation, mainly referring to the obligation not to commit as a crime. Such as the obligation of citizens or enterprises to pay tax according to law, the obligation of husband and wife to support each other, the obligation of parents to support education for their children, and the obligation of parents to support their parents. When these obligations become obligations of criminal law When it is the basis of the legal obligation.
There is a problem here, the Constitution expressly stipulates that the criminal law can determine whether it is not as a crime as a matter of obligation, China's criminal law scholars show two different attitudes, one positive affirmation of the specific provisions of the law expressly Including the obligations under the Constitution, but for all the obligations under the Constitution can become a specific duty of not as a crime is not detailed; Second, the Constitution that the basic obligations of citizens, not yet for criminal law and other regulations to be detailed It is generally not to be a basis for the determination of a crime, or that the Constitution as a fundamental law of the state, although it also adjusts social relations, gives the social relations subject certain rights and obligations, but because the constitution determines the rights and obligations only principle , The constitution of these rights and obligations only macro-adjustment, but the various areas of the group and the individual's rights and obligations of the principle of the declaration to declare down, and can not be specified, so the obligations of the Constitution can not direct guidance People behave only when it comes to one Law, people's actions will serve as a guide. The author believes that the Constitution as the fundamental law of our country law, but also one of the legal sources of criminal law, with the fundamental, the highest and other characteristics, the provisions of a general and overall characteristics, regulate the development and scope of departmental law, criminal law As a constitutional law under the premise of the premise, the obligations of the Constitution, of course, can also be used as a crime as a source of obligations, and only those who cause or may cause serious harm to the behavior of the object can become criminal law sanctions , As a matter of obligation, only those who violate the obligations imposed by the Constitution will cause or may cause harm to the outcome of the obligation to become a crime as a source of obligation. Even if the Constitution expressly provides that other laws are also recognized, but will not cause or can not cause the consequences of harm, still can not become a crime as a source of obligation. One of the characteristics of criminal law is different from other departments of the law is the means of its strict and compulsive. In the case of a last resort, that is, in the case of other laws that can be used to evaluate the act of omission, it is not appropriate to impose sanctions on criminal law. Such as the obligation of labor, the obligation of education, the obligation of family planning, although the Constitution expressly stipulates that citizens should abide by these obligations, but if the citizens violate, not subject to criminal evaluation, but only by social morality, administrative legal norms.
II. The obligation to fulfill the requirements of the individual who acts or business
Duties or business requirements as a duty, refers to a certain person as a job or engaged in a business and according to the law to fulfill certain obligations as a duty. If you have such an obligation, you must take the appropriate job or engage in the corresponding business. In the case of impure omission, as an obligation is usually an obligation of duty or business requirement. They are generally regulated in the relevant rules and regulations, which are legally binding and therefore can be an obligatory source of omission. In the determination of the time, on the one hand the perpetrators must be in the implementation of duties or engaged in business, on the other hand must be required as a duty in its duties or business within, otherwise there is no obligation. The difference between the obligation required by duty or business as a matter of obligation expressly provided for by law is in the obligation prescribed by law. It is a prerequisite for a particular identity and is expressly provided for by law, regardless of what the person is doing What duties, as long as he has this identity, it must fulfill the specific obligations; and duties or business requirements as the obligation to the people engaged in certain business, as a prerequisite for the premise, by the relevant laws and regulations, Clearly stipulates that as long as the perpetrator in the implementation of their duties or engaged in business, they must fulfill their obligations. For example, the captain of the ship on the sea passenger ship, in the event of a major danger of the ship has the obligation to organize the rescue, if the captain in distress when not to fulfill the relevant rescue obligations and only their own personal or property safety, resulting in criminal law serious consequences, That is, should be done as an act, and thus may constitute a crime of dereliction of duty. Such obligations do not act as a matter of obligation if the perpetrator acts as a person or is engaged in a business and is being executed as a condition. For the duties, the business is not clearly defined, whether the unit, the industry recognized responsibilities as a basis for some scholars have a positive attitude that China's current sector, the industry is still lack of standardized management of the case, for the industry recognized Duties, business obligations, should not be the unit, the industry is not clearly defined as an excuse to deny. I believe that such views are currently irregularities of. Duties or business obligations must be the perpetrator has a certain job or business responsibilities, otherwise it will expand the scope of its duties or business, is not conducive to maintaining the stability of the criminal law and authority.
3. Obligations of the act of the perpetrator
One of the earliest acts of acting as a basis for the conduct of the German scholar Sihong Bell Miao. The obligation to act first refers to a specific positive obligation to exclude the danger or to prevent the occurrence of the hazard from the perpetrator of the lawful rights and interests of the criminal law. "The behavior of the perpetrator because of their own behavior caused by criminal law to protect the social relations out of danger, bear the measures to avoid harm to the consequences of the occurrence." For example, when the cigarette burner caused the fire, the perpetrators of the obligation to actively extinguish the fire; , Inadvertently hit the pedestrian hit seriously injured, bear the obligation to be bruised. If you do not take positive measures and have serious consequences, you should bear the responsibility of not taking the form as a crime. The following questions are worth exploring when determining the obligations arising from the act of precedence:
(1) behavior is limited to the first offense or whether it also includes lawful behavior?
Taiwan's criminal law will be the first act as a duty, but did not involve the legal nature of the first act. This is defined by the scholar, and it is considered that the act should be limited to an act of unlawful duty: "Only the majority of scholars said that the former act must have the urgent danger of the result, and there is no obligation to be obligated." There are different claims, that the first act as long as enough to produce a danger, it can become an omission source of obligation, without having to require the first act of illegal nature. First acts include not only illegal acts, but also should include legitimate acts, for example, Lee with a minor Sun Mu to climb the mountain, which is a legitimate act, its failure to perform care obligations, causing the death of the cliff, the violation of the first act Of the care obligations, constitute a crime. I believe that the first act as long as it can cause a danger, can become a source of obligation, regardless of whether it is legitimate. Criminal law as an independent legal department, its purpose is to combat crime, protect the legitimate rights and interests of the state, the collective, the citizens, the adjustment means of the severity and compulsive characteristics of the citizens of life, personal freedom, property rights and basic political rights once Be violated, the perpetrators, whether their actions are legal or illegal, should be subject to appropriate sanctions, which is conducive to combat crime, protect the legitimate rights and interests of citizens, to achieve equality before the law. Similarly, not as a crime is also true
(2) Can criminal acts be an obligation as a precedent?
In this regard, there are four different propositions in theory. Negative states that criminal conduct should not be a prerequisite as an obligation, it can only affect the severity of criminal responsibility. After the perpetrator has committed the criminal act, he has the obligation to bear the criminal responsibility, and has no obligation to prevent the harm result. If a criminal act can lead to an obligation, then many crimes will change from a crime to a number of crimes, which is not appropriate. Affirmed that "since the illegal acts can be the first act, denial of criminal behavior is the first act, in the case of unreasonable, is not conducive to judicial practice." Compromise that based on the principle of punishment and punishment to adapt to the behavior should be laissez-faire (Including aggravated composition) included as a distinction between the standard; can be included, not as an obligation, according to the legal penalty before the crime penalty can be punished; beyond the scope of the crime before the crime committed More serious crime, then have as an obligation. Intentional crime and negligent crime do not say that should be treated differently from the nature of the crime. Intentional crime can not be a prerequisite for not becoming a crime. And negligent criminal acts can become a criminal act of the first act. The reason why the act of intentional dangerous behavior does not constitute a crime on the grounds that there is no expectation of possibility, and the request for faulty personnel to prevent the occurrence of harm results, in full compliance with the principle of expectations.
To sum up, I believe that the negative that the exclusion of criminal behavior is too one-sided, is not conducive to the theoretical study of criminal law. For example, the crime of traffic accident, the behavior of a drunk driving collision hit B seriously injured, that has constituted a criminal act, and A still have the obligation to rescue B, if not rescue B died, then the traffic accident escape behavior, constitute Accidental Punishment of Traffic Accident Crime. In this case, the security obligations of A-B are the obligations arising from the earlier criminal acts; it is certain that the intentional and negligent circumstances of the offense are not taken into account. In the case of intentional criminal acts, the perpetrator, whether or not causing serious consequences , Have constituted a crime, should be punished by criminal law. And if the perpetrator does not fulfill the intentional criminal acts caused by the obligation to constitute another crime, there will be a line to produce a number of crimes, by several criminal evaluation; compromise may also be a behavior for the establishment of the case of several crimes, so I think It is not desirable. Deliberately and negligence of the difference between the crime is more specific and appropriate to distinguish between the obligations arising from the first criminal acts, but all denied the intentional omission. As mentioned earlier in the author, although one of the characteristics of the obligation as a crime is that its omission does not have serious consequences, no serious consequences do not constitute an offense, and a deliberate offense, whether or not it produces a corresponding consequence, As a crime also includes intentional not as a crime, such as the previous example, the mother out of the intention to kill the baby and not to the baby feeding; taxpayers for tax evasion rather than pay taxes and so on. Thus, I believe that intentional and negligent crime that is not appropriate. For this issue remains to be further studied by academics.
(3) the dangerous behavior caused by the first act
It is important for the dangerous state to act as an obligation. "Since the first act can lead to the occurrence of a criminal legal relationship, then the act of the first act is a legal act, and the obligation to eliminate the dangerous state is a legal obligation." "The danger caused by the act of precedence must be urgent and concrete In other words, the result of the ex ante behavior of the perpetrator's behavior, that is, the state of danger, can dominate the causal process of the actual outcome, and the chills have a higher probability of causing the actual result "Whether or not the act of conduct arises as an obligation often depends on the presence or absence of a dangerous state. It is obvious that the actual existence and the occurrence of a dangerous state may arise as an obligation, but if it is only possible that a dangerous or dangerous state is not sufficient to produce a hazard, the act of advance does not arise as an obligation. Such as Zhang and Lee playing cards, Lee due to lose money to Zhang, heart grievances, consciously no face to see his family and commit suicide, Zhang's behavior does not constitute a homicide, because Zhang and Lee's gambling behavior , And not necessarily cause the risk of Lee's suicide.
4. Obligations arising from the legal act of the perpetrator (contractual act, voluntary act)
Obligations arising from contractual conduct, such as those who are employed as a nanny and are obliged to take care of a special baby or child during employment. Voluntary commitment to the obligations arising from the act. For example, voluntary abandonment of others abandoned the baby, bear the obligation to raise the baby. If the perpetrator does not seriously fulfill his obligations, serious consequences may also constitute an offense of inaction. In this case, the author of these two cases were discussed separately:
(1) as a result of contractual obligations arising from the contract
In real life, the contract has civil contract behavior, administrative contract behavior and labor contract behavior. "As the labor contract and administrative contract requirements such as the obligations have generally passed the laws, regulations, rules