The concept is not as

China's criminal law concept not as not to be clearly defined in law, which also led to the theoretical circles have a lot of controversies on the concept. On the current view mainly has following several definitions:
(a) is not as actor has implemented a specific legal obligations, and can implement but does not implement the behavior.
(two) not as refers to the act to fulfil their obligations in the case of non performance of the obligation, the obligation is a legal obligation to implement specific positive behavior.
(three) the omission, refers to the act of specific obligations of criminal law must fulfill, can fulfill but does not perform behavior.
(four) the omission, is refers to the behavior person has the obligation and can implement a behavior negatively not to perform such obligation, thus causing serious harm consequences. So not as a negative behavior of people.
(five) not as a crime refers to the act of the implementation has some positive behavior in a specific legal obligations, and can implement but does not implement the behavior.
(six) the crime of omission is not fulfill the statutory obligations of the crime.
(seven): not as criminals have the obligation to implement and may implement some positive actions and not the implementation of the action, "as not", with the specific obligations for the premise, namely the obligation, the obligation source -- the law permits the duty, business behavior; the obligations arising from antecedent actions; obligations. [Wang Zuofu: "criminal law" Renmin University of China press 1999 edition, fifty-fourth pages.]
The author thinks: omission means the behavior person has a legal obligation to implement specific positive behavior, and can implement risk behavior and not implemented. That is not as real shall not fulfill obligations, thus established the connection between specific obligations not as a peer who bears.

The gist of crime of Nonfeasance

Not as a crime is a complex type and worthy of further research and crime. The establishment of crime of omission is the premise of the act shall have the obligation of the corresponding, so make sure the gist of crime of nonfeasance is crucial.
Our country criminal law educational world about the omission as a crime obligations source range is controversial, from the relevant works mainly has the following three kinds of views:
(a) the three sources say. This kind of viewpoint thinks, not as a crime as obligation sources include the following three kinds, namely the law expressly, job or business requirements and behavior of human behavior before.
(two) the four sources say. This kind of viewpoint thinks, not as a crime as obligation includes four kinds of source. Specific propositions which have different. Some scholars believe that, in addition to the said three as a source of obligations, should also include "caused by the legal act carried obligations". This is in recent years the most influential ideas.
(three) the five sources say. This kind of viewpoint thinks, not as a crime as obligation includes five kinds of source. As the scholar thinks, except that the three as the source of obligations, should also include the following two source of obligation, namely "voluntarily assumed certain obligations" and "on special occasions, specific obligations to fulfill requirements of public order and morality". [ Zhao Bingzhi: "not as a crime as obligation should adopt four source said -- not as a crime as obligation according to contend for" contained in the "procuratorial daily", 2004.5.20

The author agrees with as a crime as obligation in essence should be a legal obligation, moral obligation of general social significance pure obligation should not belong to the scope of the obligation. Of course, legal obligation is not equal to that in legal obligations, should also include the legal behavior based on the obligation of contract. Three sources said the scope is too narrow, and the five sources say it too wide.
The author thinks that the four sources say there is feasibility in contrast, that not as a crime includes the following four kind of obligation source, namely: the law clearly stipulates the obligation; requirements of job or business obligations; as obligations arising out of legal act; the obligation arising from antecedent actions. Below this four source of obligations to specific analysis:
(a) as the obligation law.
On the legal obligation should be understood as the only criminal obligation. But in theory, once some people hold a positive view. Most scholars think, the so-called legal obligation, is not limited to criminal law including single criminal law and accessory criminal law stipulated the obligations, but should also include the civil law, economic law, marriage law, procedure law, administrative law and other laws, laws and regulations stipulate the obligation. There is a need to explain, expressly violating non criminal legal obligations, and not be omission obligations according to the crime, only authorized or required by the criminal law, may be regarded as the obligation according to the. otherwise, confuse the criminal and non criminal law is not different as the crime scope, expand the criminal law against.
(two) obligations as a job or business requirements.
As a compulsory job or business requirements, refers to the subject as a or engaged in some business and fulfill certain obligations in accordance with the law as the. For the requirements of job or business obligations, in principle should be limited to the duty rules, regulations stipulated the content, but in our country at present, the responsibilities of the industry sector is still a lack of standardized management of the situation, for the industry recognized duties, obligations on business, should not be to the unit, the industry in the future as clearly defined as an excuse to be negative, but should be based on the industry recognized and confirmed.
(three) as the compulsory legal action
Legal act refers to the ability to set up certain rights and obligations in the law. In social life, legal person is varied. In a broad sense, not only the behavior of people in accordance with the relevant legal provisions of act, and those who voluntarily undertake some implemented certain behavior or prevent damage happen obligations, actors resulting in certain legal obligations, and also belongs to the legal behavior. The law in practice mainly for the contract act, generalized to include voluntary obligations behavior oral contract. Contractual obligations involved as a very complex problem, one of the key problem is how to divide the adjustment between criminal law and civil law and other non criminal law, should be combined with the theory of social equivalence to the judgment.
(four) as the obligations generated by antecedent actions.
The first act is a kind of obligation, right the person the previous implementation of the behavior of the protection of the law is in danger, and prevent the harmful consequences of obligations. As one of the leading behavior caused by duty, responsibility is not only illegal behavior, behavior, including legal, legitimate act and omission can cause as a duty, but can not lump together, should according to the theory of social worthiness to specific analysis.
 
Don't act crime as

Behavior problems are basic problems in criminal law theory. According to the theory of constitution of crime of our country, the harm behavior (sometimes called crime is essential) elements of objective elements of a crime, no action, no crime. Not as a crime is a behavior problem, is not as the basis of criminal behavior of called, not as a crime "Inaction" is not the implementation of specific obligations required for the implementation of the act, which leads to crime of omission. Know, not as a crime has two characteristics:
(a) the subject does not implement specific obligations required for the implementation of behavior;
(two) it is not as a form of a cause of crime. [Ou Jinxiong: "not as acts of" crime "in criminal law contained in the China essence" 2004 Volumes]
This feature is not as compared with other classes, the social harm is very serious, in accordance with the criminal law should be subject to punishment. From the two characteristics of criminal omission, criminal omission is relative to a certain extent, namely the criminal omission is not the implementation of the "specific obligations required for the implementation of behavior", therefore, it does not have behavior, this is from the logical thinking, from the jurisprudence, crime is not as not as the scope of income is defined after the conclusion of the. Not as a crime refers to a crime is not as a form of crime. It can be divided into statutory crime of omission and the crime of omission of two types. According to the objective elements of crime is also includes criminal omission and crime as two forms of legal, not as a crime can be divided into two categories: one category is the single crime of omission, the other is a composite of crime of omission.
Single omission crime can be divided into pure not as crime and the crime of the impure omission. Pure omission refers expressly stipulated in the criminal law, as long as have the criminal omission and certain harm result can constitute a crime. For the legal pure not as crime, crime as elements, not the objective aspect of the behavior is not a statutory, not as pure essential objective characteristics of crime. The offense of nontypical omission refers to the omission which usually takes the form as a form of crime. In the statutory offense of nontypical omission, "behavior" is not the essential characteristics.
The so-called complex criminal omission is expressly stipulated in the criminal law, the objective aspect of crime and criminal omission by the two forms of crime of omission. For the statutory composite not as a crime, the criminal law is the necessary element of the crime objective aspect. Therefore, the statutory crime of omission has the behavior of composite. For realistic composite not as a crime, the objective aspect shall have legal composite nonfeasance crime crime not as, also must implement the statutory composite not as stipulated in the objective aspect of crime for the crime, to constitute the crime. Therefore, the reality of the composite not as a crime with the same behavior. Visible, for the crime of omission, not all are considered not as a crime behavior, or no action, but should be arranged to be a specific analysis.
In criminal law and criminal law theory, the existing criminal constitution theory will act and omission are considered behavior, and to complete the same crime constitution theory of crime constitution interpretation of both, which obviously is not scientific. Therefore, we should not as a crime as a separate crime, and constitute the crime of our country under the theoretical framework, the establishment of relatively independent of the nonfeasance crime constitution theory, so that our crime constitution theory more perfect.

Not as the antecedent act crime

Not as a crime, must be not as people have certain obligations as a requirement for the first action, but it is not as obligation sources and according to one, in other words, behavior person if because of the previous implementation of the behavior of the legitimate rights and interests in a dangerous state suffered serious damage, as a result to prevent damage results as the obligation. Therefore, according to the advance behavior and source is the behavior has the specific obligation, but also people established impure as a prerequisite for prisoners. The first act is regarded as not as a source of obligations, not according to the habit and method, is the general experience in people's daily life conclusion, but confirmed by the state and legal norms based on the will of the ruling class. [Li Xuetong: "of criminal omission behavior" contained in the "criminal law", 1998 eighth
]
 First of all, to act as the obligation is in accordance with the requirements of the purpose of criminal law and the task. The fundamental purpose of criminal law is to protect the legitimate rights and interests. Therefore, behavior as a result of their actions to benefit under threat, as the implementation has positive action to prevent the obligations, otherwise it will violate the law to protect social common interest in life, namely the norms against the law protection law. The first action behavior, the legitimate rights and interests of a dangerous state suffered serious damage, which produce to take positive action to prevent damage happen obligations, if he can stop and do not prevent damage results, the legitimate rights and interests protected by criminal law will give a serious loss, so in order to protect the legitimate rights and interests are not infringed, criminal law the inevitable requirement of the behavior person has the obligation to prevent damage. Visible, this not only is decided by the objective and task of the criminal law, criminal law protection function is also an important manifestation of the.
Secondly, the advance behavior as the obligation is the logical conclusion of criminal law norms. From the analysis of the structure of criminal law norms, norms of criminal law about the crime, by assumption and sanctions is composed of two parts, which is prohibitive norms, but it is the rule of order, because the criminal law, the prohibition norms and command norms is relative, that objects have some responsibility in the law, all the compulsory norm. In every ban certain behavior norms are hidden behind the ban, containing the command specification expect not to act, in the back of each command specification expect implemented certain behavior, are implied prohibition norms, prohibited acts is not necessarily so, "because the risk must result from the behavior of occurrence have the duty to prevent its occurrence, the cover, not infringe upon the interests of the obligation of omission, on the reverse side, of course, contain such as yourself as to risk and infringement of legal interests when, should prevent the occurrence of such as obligations, so that the violation of obligation is not as likely has the strength with the one of the". Li Xuetong: "[ of criminal omission behavior" contained in the "criminal law" in 1998 8 ·] if the perpetrator can prevent the result of the occurrence of the damage is not prevented, not only violated the requirements of the obligation of omission, and in violation of the order specifications as obligations.
 Once again, the advance behavior as the obligation is according to the legal fact confirmed by the criminal law and that of course conclusion. The advance behavior on its legal property, is a kind of legal act. The so-called legal behavior, is able to cause generation of legal relationship, change and termination behavior in social life, the implementation of certain legal action, will have certain obligations, therefore, must bear legal responsibility and consequences.
 With the deepening of not as guilty of theory and practice and development, as the obligations of antecedent actions, for the criminal law theory and judicial practice are widely recognized, a few countries and regions such as South Korea, Taiwan and even the criminal law expressly. Of course, also should see, with the post World War II social trend of thought from the importance of collectivism to individualism, focusing on changes in the maintenance of personal freedom and rights, antecedent actions must meet certain conditions to obligation.
(a) the advance behavior must be the actor's personal behavior. The first act, is relative to the dangerous state after the inaction of the doer behavior, which refers to the behavior caused damage happen not as a behavior before the implementation, has implemented the legitimate interests of some dangerous behavior. Therefore, the advance behavior is behavior person action, which is the subject of antecedent actions must be the behavior person, but not people outside of their own, such as driving a car accidentally hit the pedestrians, the behavior of life-threatening, have prevent died of their injuries and the obligation to take necessary measures; and as the rollover the oil lamp to fire, for fire extinguishing obligations; on the contrary, if is other traffic accident victim life-threatening or others overturned lamp to fire, people only have the ethical obligation and has no legal obligation. Therefore, others can not be the subject of prior behavior,
 (two) the advance behavior must have certain dangerous state of existence. The so-called specific risk, is a possibility of behavior itself contains enough to make the criminal law to protect the legitimate rights and interests suffer actual harm. The advance behavior must have specific risk state was responsible for preventing the act obligation. Therefore, the dangerous state is an important condition for the advance behavior established and substantive criteria, scope only to correctly grasp the characteristics in order to reasonably define the advance act.
 1, the dangerous state has violated the reality, namely the risk must be to make the legal protection of the legitimate rights and interests are suffered serious damage to the threat. If the risk has not yet happened that a direct threat to the benefit of criminal law the fact that state has not yet appeared, is not true before act.
 2, the dangerous state is neutral and objective. A dangerous state of antecedent actions as the danger caused by the crime of the impure omission results, must be an objective neutral behavior facts, is not yet the normative judgments of fact. If has the value evaluation has been negated by the criminal law of the dangerous state that the advance behavior, principle is violated the criminal law prohibiting repeatable evaluation. Therefore, the dangerous state of the antecedent act has only the dangerous result and does not have the risk of behavior, behavior is not the fact that by the value judgment of criminal law is different from the criminal result, does not have the "illegal" feature.
3, the dangerous state with the urgency of concrete. The danger is concrete rather than the abstract, is urgent but not slow, "if the abstract danger as the foot, the range seems too wide, and the offense of nontypical omission evaluation (with equal value), shall be limited to certain conditions, to avoid excessive expansion of the scope of the purport of punishment against, it should be strictly limited in the solution, that 'urgent' and 'specific risk' as". The so-called specific imminent danger, refers to the danger caused harmful consequences trend is undoubtedly, not possible, probable. In other words, caused by the behavior of the implementation of advance is the outcome of the dangerous state to exclusive control real harm results occur causal processes, and therefore dangerous state has caused real harm results occur higher possibility.

Five, Not as criminals

The so-called not as accessory, refers to prevent others to commit a crime obligations are deliberately not to stop, so as to help others to commit the crime behavior. In this regard, few people in the theory circle of our country and. [ Liu Lingmei: "in the criminal law is not as abettor" contained in the "Journal of Northwest University of Politics and Law" in 1999 fifth ·]
 As a way to not can help others to commit a crime, domestic and foreign theoretical and practical circles generally hold a positive attitude. Not as may be established to help commit no doubt. But because of the crime of omission in itself is of special and complex, so as not to help make the establishment and confirmation that still exist in the following problems need to be solved.
 Not as a criminal is to have obligation of elements on this issue, some scholars think was not as help offender need not have obligation. Don't think as accomplice is not as a precondition are not enough guilt. Not only meet the following two conditions as it is the principal offender:
(a) do not exist as elements of the crime, there must be not as a possible way to implement;
(two) not as must have the duty to prevent. Only in the absence of any elements, not as a person can become the accomplice. Therefore, the establishment of omission offender does not need to have the duty to prevent.
The author thinks not as aid from its essence is not as committed as the obligation is established, and not as a necessary condition, not as a crime so, help offenders must also to help with the obligation of omission as the prerequisite. From the help of crime is a type of amendatory constitution of crime of omission, on occasion, negative crime is the duty to act as a symbol of, and helping behavior is not as committed to implement behavior and load, thus helping behavior does not need this element. But not as help offense, its essence is a kind of crime of omission, of course, to meet the conditions to be not as a crime.

The nonfeasance crime causal relationship

Criminal causality problem put forward the first in the Stubel in 1805, "criminal elements" one book, since then, research on the relationship between criminal law and cause more get attention. Causality in criminal law is an important content of theory of crime constitution, but also the criminal legislation and justice is one of the important topics. From the form of crime, crime as a crime and not as a crime, thus, can also be divided into criminal causality as the causal relationship between crime and not as a crime because of.
 (a) not various theories as crime causal relationship
Not as a crime is the responsibility of obligations, intentionally or negligently fails to perform its specific obligations, do harm to the society, in accordance with the criminal law should be subject to criminal penalties for violations. The causal relationship of the nonfeasance crime is a special case of the causality in criminal law, the crime of omission, there are different views in theory, mainly has the following several theories:
1, must say. As sure as crime there is causality in criminal law. When the scholars in the specific demonstration and there are mainly five kinds of different views. He said, first, because he said, as the breach of duty by saying that, to prevent the possibility that. The above five theories before two is never as outside the act for causality of omission crime, so it is called "as the reason that". After three, because of different level soil fertility for never as study itself not as a causal relationship in the crime, so it is called "not as a reason".
2, negation. That does not exist as a denial of causality in criminal law crime. This theory held, not as is "no", no can not have, therefore not as reasons caused no results, not as a crime is not a causal relationship problems. "Such as the German scholar Welzel think: not as there is no act, no consequence to say." 1 obviously, this theory is wrong, also has been abandoned. Now the majority of scholars do not think as not simply "no", but do not implement the behavior legal expectation, in the social sense still is a kind of existence, is not as shall be judged from the legal or social significance.
 Not as a quasi causal relationship, namely the nonfeasance crime causal relationship does not exist in the objective fact, but the law will not as a result of crime and look like. German criminal law scholar Lester said: "not as though is not to prevent the result of negative meaning, so it occurs on the result, not force any existing material. It is one of the crimes, as the causal relationship between the omission and the results only apply mutatis mutandis.
 To sum up, it is not difficult to see that, for the causality of omission crime in criminal law theory, there are differences in the. In order to solve these problems, first of all should be clear and not as a crime as crime compared to what is the difference, the causal relationship of the nonfeasance crime which features, then we can deeply research on causality of negative crime.
(two) not as a crime and the causality characteristics
Any one of a crime, need to have people out of harm the social behavior, this behavior is included as including not as. In the respect of causality, even as a crime and the causal relationship of the nonfeasance crime have the same side, however, because the act and omission is the behavior in two different ways, so the causality of omission crime has its specificity:
1, not as the research object of crime causation as a crime is not exactly the same. The nonfeasance crime causal relationship is objectively violates the provisions of the criminal law study not as that does not fulfill the causal relationship between the specific duty behavior with the harmful results, but not as specific as contact compulsory and harm result, is the cause and result of causality in criminal law is to study, otherwise it will expand indefinitely not as the research scope of criminal causation.
2, the crime of omission, cause harm the social result, besides behavior does not perform a specific obligation, there are some natural force or other action. That is to say, before the behavior of omission or the objective already exist or potential may harm the social result of causal chains. This is harmful to the society of causal chains, it is behavior person specific acting obligation object. "Causality of omission crime has hidden certain, this in the determination of crime of omission should pay particular attention to the." Research is not as having special significance particularity of crime, we only grasp the particularity of the crime and not as a causal relationship, in order to further analyze the omission is how to become a reason in criminal law.