Can moral obligation be the source of obligation for the crime of omission?

Abstract: The source of the crime of omission as an obligation has experienced the development process from formal obligation to substantive obligation. In this process, moral obligation has gradually developed into a crime of omission as the source of obligation, so that foreign legislation has made special provisions on it. However, we cannot generalize moral obligations. We should not only recognize the similarities and differences between Chinese and foreign theoretical research methods and legislative status quo about the crime of omission as a source of obligation, but also recognize the subtle differences between the recognized source of omission obligation and moral obligation. Only in this way can we accurately grasp the application scope and occasions of moral obligation. Key words: the moral obligation of the crime of omission is the source of obligation, public order and good customs. 1. The theoretical origin and development of the criminal obligation of omission. The crime of omission refers to a criminal act in which a person who has a specific obligation to act intentionally or negligently fails to perform his obligations while being able to perform his obligations, resulting in certain harmful results. The crime of omission can be divided into real (pure) crime of omission and unreal (pure) crime of omission according to its different structures. In the theory of criminal law, all the problems of the crime of omission are based on the specific duty of action, because it reflects the basic criminal facts and constitutive requirements of the crime of omission, and is the main basis for determining whether the crime of omission can be established and what kind of crime it belongs to. The crime of omission is one of the basic forms of crime, and its core content is omission. The obligation source of the crime of omission is a very important part of it, which has important theoretical and practical value. There are two typical theories about the research on the obligation of omission crime, namely, the formal obligation and the substantive obligation. Feuerbach, the father of modern criminal law, first put forward the theory of formal obligation. He believes that "the crime of omission is usually based on the specific legal basis (law and contract) of the perpetrator". [1] Since then, German scholars Spangenberg and Henkel have extended the scope of obligations to the field of marriage and family life relations in their works. Precedent behavior is considered as one of the bases of obligation, which was put forward by German criminal jurist Stuber. At this point, the "three-point theory" of German criminal law as the "form" of obligation was established. It is of great significance to clearly explain the types of obligation sources in form for strictly distinguishing moral obligation from legal obligation and preventing expanding the scope of punishment for untrue omission crime under the pretext of substantive judgment. However, it is not enough to describe the source of obligation only in form, and the outstanding problem is that it can not provide substantive theoretical basis for the source of obligation. [2] As the substantive theory of obligation, it avoids the distinction between action and omission, and confirms the substantive basis of omission as a specific obligation in the special relationship between omission and harmful result or omission and victim. The theoretical reform of the crime of omission as the source of obligation is not unrelated to the criminal law consciousness or independence. Professor Shafstein of Kiel School in Germany pointed out that according to the "formal trisection theory", the obligation source of omission crime is mostly subject to the provisions of civil law (that is, "criminal law civilization"), which makes the concept of illegality of criminal law have double standards, and there is a fallacy that criminal law depends on the concept of illegality of civil law. [3] In the compulsory materialization movement, various theories of obligation appeared in Germany, such as vogt's "theory of closer social order", Andrew Knox's "theory of close relationship first" and Bawinkle's "theory of public welfare". [4] So far, the theory of entity as obligation still occupies a dominant position in German criminal law theory. The substantive study of Germany as a source of obligation has also had a great influence on Japanese criminal law theory. As early as before World War II, the first-class scholars of Konoha began to seek an attempt as an obligation from a substantive standpoint. Since the 1970s, many Japanese scholars have made in-depth research on the substantive basis of obligations and put forward their own distinctive theories of substantive obligations, such as the theory of "the first act" by Professor Riko Ryobo, the theory of "the fact commitment" by Professor Kenetsu Toda, and the theory of "the domination of concrete facts" by Professor Noriko Nishida. [5] But unlike Germany, these theories put forward that although it is of great significance to deepen the understanding of Japanese theory as the substantive basis of obligation, it has not fundamentally changed the traditional practice of Japanese criminal law theory to find obligation in form. As can be seen from the above discussion, in modern criminal law, the basic trend of the development of omission crime is that maintaining the essence of omission crime is a violation of the basic theory of obligation theory, while actively avoiding the traditional enumeration method as the basis for the occurrence of obligation, and trying to make some objective restrictions on the basis for the occurrence of obligation. Therefore, in a sense, the research on the status of the obligation as an obligation in the crime of omission has shifted from the formal obligation as an obligation to the substantive obligation as an obligation. Second, whether moral obligation can be used as the source of obligation for the crime of omission It is generally believed that morality refers to the long-standing judgment standard of good, evil, beauty, ugliness, good and evil. It is another social adjustment norm that is both integrated with the law and independent of the law. It is different from the consciousness and compulsion of law, but spontaneous and non-compulsory. The state machine guarantees the fulfillment of legal obligations, while the violation of moral obligations will only be condemned by public opinion, and the state coercive force can do nothing here. At the same time, the object of criminal law protection is legal interests (social relations), not others. Therefore, it is a thorny issue whether moral obligation can be used as the basis for the occurrence of omission crime obligation. The criminal practice and theoretical circles in different countries also have different attitudes. According to the theory of form as obligation, the sources of obligation of omission crime generally include enumeration method, legal act and antecedent act. Its main feature is that the basis of the so-called obligation as an element with legal effect is always found in the law, that is, the source of the law. Therefore, in the view of formal obligation theory, moral obligation cannot be the source of obligation in principle. In our country, the criminal law circle generally adopts the theory of form as the obligation source of the crime of omission. Because there is no clear definition of the concept of the crime of omission in the current criminal law of our country, there is a great controversy about the source of the obligation of the crime of omission. China's criminal law theorists have several different views on the obligation source of omission crime, including the "three sources theory" put forward by Zhao Bingzhi, the "four sources theory" advocated by Gao Mingxuan and the "five sources theory" advocated by Ma Kechang. [6] And these theories about omission as the source of obligation have different attitudes towards moral obligation. It mainly includes two viewpoints-negative theory and positive theory. For example, the "three-source theory" and "four-source theory" mentioned above advocate negation (the difference between them lies in whether legal acts are recognized as the source of obligations). In addition, Xiang, Xiao Zhonghua, Su, Li Hong and other scholars all believe that moral obligation cannot be used as the source of obligation for omission crime. Scholars have different views on the theory of affirmation. Among them, the above-mentioned Ma Kechang believes that under special circumstances, public order and social morality require the performance of specific obligations. [7] Xiong Xuanguo, a scholar, believes that moral obligation should be divided into pure moral obligation and moral obligation that rises to legal obligation. In his view, moral obligation and legal obligation are often closely linked, impure moral obligation can be the source of omission crime, and only pure moral obligation can avoid the problem of omission crime. [8] Peng Lei, a scholar, advocates that moral obligations are divided into general moral obligations and major moral obligations, and that major moral obligations should be regarded as the source of omission crimes. The reasons are as follows: First, foreign legislation can give us a new perspective to understand the problem. The criminal codes of Russia, Austria, Canada, Spain and other countries all have similar provisions on the crime of not saving in times of danger. Second, it is in line with China's national conditions that major moral obligations are upgraded to legal obligations. At present, the ideological and moral level of Chinese citizens has seriously declined. Second, it is feasible for major moral obligations to rise to legal obligations in practice. Improving people's moral level through the coercive force of law means that the law requires people to abide by certain moral concepts, which is consistent with the coercive effect of law. Thirdly, the problem that the social standard thought of raising the major moral obligation to legal obligation will conflict with the value orientation of individual standard in the new criminal law of our country can be solved by Coase's "right equivalence" theory. [9] However, regardless of the attitude of scholars on whether moral obligation can be used as the source of obligation of omission crime, Chinese scholars' research on the source of obligation of omission crime is based on formal judgment. As mentioned above, the research on the source of omission obligation abroad has shifted from formal obligation to substantive obligation. German scholars have always been in a leading position in this field. Japanese scholar Hideyoshi Muye clearly pointed out that the violation of obligations should not be limited to the violation of obligations, and the behavior related to the result can also be regarded as a formal crime, and inaction can be regarded as a violation of public order and good customs. The development of theory has also promoted the progress of practice. Article 330 of the German Criminal Code stipulates: "In case of an accident or public danger, or in case of death, it is necessary and possible to rescue, especially if there is no great danger to oneself, and there is no violation of other important obligations, he shall be sentenced to fixed-term imprisonment of not more than 1 year or fined." In addition, Article 593 of the Italian Criminal Code stipulates: "Anyone who finds others unconscious, seemingly unconscious, injured or in other dangers and fails to provide necessary help, or fails to report to the competent authorities immediately, shall be sentenced to fixed-term imprisonment of not more than two months or a fine of not more than 60 Wan Li." The criminal laws of France, Russia, Austria, Canada and Spain all have similar provisions without exception. Due to the influence of foreign legislation, many deputies to the Ninth National People's Congress put forward a motion to add the crime of "not saving yourself from danger" to the criminal law, but at present, China's legislature has not amended it. Therefore, the theory has not yet become the mainstream view in the field of domestic criminal law, and there are not many supporters. However, the provisions of foreign legislation on the crime of not saving in times of danger or the crime of not saving in times of danger are only obligated if there is a great danger and the behavior of the actor is not a great danger to himself. It can be seen that the basis of moral obligation as the source of obligation, even in the theory of substantive obligation as obligation, is not without boundaries. Thirdly, whether moral obligation can be used as the source of obligation of omission crime, I think the author thinks that whether moral obligation can be used as the source of obligation of omission crime cannot be generalized. First of all, we should clarify the origin relationship between moral obligation and recognized obligation of omission. In fact, among the main forms of the crime of omission as the source of obligation, each one contains moral obligation (impure moral obligation is a special moral obligation). For example, in the crime of abandonment, "parents' obligation to support their children and children's obligation to support their parents" (family ethical obligation); Firefighters have the obligation to actively put out the fire in duty or business requirements "(professional ethics obligation); Among the behavioral obligations caused by legal acts, "faithfully performing the specific legal obligations caused by contractual acts" (moral obligation of honesty and credibility); Among the behavioral obligations caused by antecedent behavior, "the obligation to send the victim whose life is in danger to the hospital in time after the traffic accident" (public moral obligation). [10] It can be seen that the moral obligation itself is hidden in the recognized source of the obligation of omission. As for whether to regard moral obligation as an independent source of obligation alone. The author believes that specific problems should be analyzed in detail. Whether Mr. Ma Kechang advocates "public order and good customs" as the obligation source of omission crime under special circumstances, or Xiong Xuanguo thinks that moral obligations should be divided into pure moral obligations and moral obligations that have been upgraded to legal obligations, or Peng Lei advocates that moral obligations should be divided into general moral obligations and major moral obligations, there is a risk of expanding the scope of criminal punishment, which violates the principles of legality and modesty of criminal law. Although foreign legislative cases that are desperate for help or ruined in reputation stipulate that moral obligation can be used as the obligation source of omission crime, its moral obligation is still inconsistent with the views of Chinese scholars, because the former is legal after all, so it will not violate the basic principles of criminal law in physical operation. To sum up, the author thinks that the research on the source of obligation of omission crime in China should realize the transformation from formal obligation theory to substantive obligation theory. Unless explicitly stipulated by law, moral obligation should be regarded as an independent source of obligation. [1] Hong: A Study of Offense of Omission, Wuhan University Press, 1997, p. 23. Translated from Kennedy III: On the Crime of Omission, Qinglin College News Agency, 1978, p. 7. [2] He Ronggong: Research on Implementation Behavior, Wuhan University Press, 2007, p. 93. [3] See Xu: Analysis of the legal philosophy background of the source of obligation in criminal law, in Journal of Chinese People's Public Security University, No.5, 2004. [4] See Xu: "On the substantive movement of the position of witness in the criminal law of West Germany", contained in Xu: "Between subjective and objective", Taiwan Province Forum 1997, the following page 355. [5] Li Hongzhu: A Study on the Crime of Omission, Wuhan University Press, 1997, p. 132. [6] See Chai: "On the Moral Obligation as the Source of the Obligation of Omission", in Law and Society, No.2, 2009. [7] See Ma Kechang, editor-in-chief: General Theory of Crime, Wuhan University Press, 1999, p.171-kloc-0/72. [8] Xiong Xuanguo: On Behavior in Criminal Law, People's Court Press, 1992. [9] Peng Lei: "Significant" moral obligation should be derived from the crime of omission as an obligation, in China Criminal Law Journal, No.3, 2003.