Research On Offense Of Non-typical Omission

Though offense of non-typical omission was proposed nearly two hundreds years ago, different kinds of opinions in this area makes it necessary to do further study. The subject of this dissertation talk about the fundamental elements of offense of non-typical omission.The first chapter discuss the theoretical status of offense of non-typical omission .There are two parts in this chapter. The first part talk about the history of offense of non-typical omission. And the second part talk about the legislation of the offense of non-typical omission in nowadays. The concept of non-typical omission does not exist in common law, whereas in continental law system, involves the obligation and equivalent of omission.The second chapter talk about the foundamental theories of offense of non-typical omission. Although there are various classifications of the criminal omissions in theory, it is most theoretical and practical to divide the criminal omissions into offense of typical omission and offense of non-typical omission. And the offense of non-typical omission means the actors use the act of omissions to implement the crime which generally accomplished by the acts. The second part talk about the causal theory of offense of non-typical omission. The theoretical circle of the criminal law of continental law system has never ceased to dispute and has not given a convincing conclusion. The specific characteristic of the causal theory of the offense of non-typical omission lies in its act duty theory. The third part talk about the act of omissions. The element of objective conditions enriches the subjective offense of act of omissions, the content of which, therefore, is not empty or fictions but practical.The third chapter talk about offense of non-typical omission and the principle of legality. The principle of legality experienced from early absolute theory to relative theory, and to a certain extent, the latter have modified the former. There are two main derivative theory of the principle of legality have directly relationship with the offense of non-typical omission, that is definite principle and positive principle. The absolute principle of legality firmly believes the definite of the criminal rules, however, which is proved to be impracticable since from the principle's cradle. The definite principle claims the definitude of the criminal rules not to be absolute but only to be positive. Moreover, the definite principle itself contains ambiguity which has its own considerable valuation and meaning. The criterion of definitude of the criminal rules ought to employ the standard of the normal persons, that is, a standard of predictable possibility of the normal persons, who own common judgment ability. In a word, the punishment of the offense of non-typical omission is in accord with the definiteness of the principle of legality.The forth chapter discuss the act duty theory of offense of non-typical omission. The act duty theory is the core of the whole theory of the offense of non-typical omission. The nature of act duties should only be the duties of the administrative law, the procedure law and the civil law but do not contain the criminal legal duties and the pure moral obligations; and the contents of act duties is protecting the legal interests of branch laws but not the criminal law. The act duties of the offense of non-typical omission refer to the actors who have been prescribed by the laws except the criminal law and validated by the criminal laws shall perform specific actions to protect the legal interests duties beyond the criminal law. By criticizing the formal theory of act duty which cannot interpret the substantial bases of the offense of non-typical omission, various so-called substantial theory of act duty appeared.The fifth chapter discuss the equivalence of non-typical omission. In continental law system, the imperfection of crime systems and the cognition error of offense of non-typical omission's normative structure directly lead to the generation of equivalence theory which holds that the criminal rules only enact the constitute requirements of the criminal acts but not the criminal omissions'. But in fact, there is difference of structure between the offence of non-typical omission and the criminal acts. In this case, to make use of the constitute requirements of the criminal acts to cover the objects of the offense of non-typical omission must be some problems which could be solved by the equivalence theory. The thesis hold that the standard of the equivalence of non-typical omission is social considerable theory.The six chapter describes the direct intent of non-typical omission and the mistake of non-typical omission and relevant issues. The content of the direct intent is no difference between the act and non-typical omission. The mistake of non-typical omission lies in the duty mistake and mistake of the posibility of the act.