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Not Really As Committed Research

Posted on:2006-07-18Degree:DoctorType:Dissertation
Country:ChinaCandidate:J M LiFull Text:PDF
GTID:1116360152485550Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
In addition to the preface, the dissertation is composed of six parts. The first chapter is the basic concepts of offense of non-typical omission. First, from the stand of criminal Law, it analyzes the deed character of omission. Act violates the prohibitive norm in criminal Law, while omission violates the order norm. So, omission is also the deed which violates criminal Law just as act. Second, it proposes a new norm which applies to differentiate omission from act, i. e. act is the deed that violates prohibitive norm and deteriorates other's benefit, while omission violates the order norm and allows the other's benefit to be harmed. Third, it gives a new definition to offense of non-typical omission, which refers to offense of omission committed by whoever has duty to avoid harmful consequences, and does not perform the duty, thus committing the same crime as act.The second chapter is the history of legislation and theory of the non-typical omission offense. First, it introduces the history of legislation of the non-typical omission offense mainly all over the world, including ancient countries, continental countries, Anglo-American countries and modern China. Second, it briefs the history of theory on the non-typical omission, including theory of ancient legal duty, causation, violation, guarantee and present tendency of research.The third chapter is the causation of the non-typical omission offense. First, it introduces various theories of causation of omission home and abroad. Second, my comments on these theories are given. Last, the dissertation advocates the theory of condition as the norm to judge causation. According to this theory, if an obligor fulfilled his duty, the harmful consequences would not occur. Then, we can say the obligor's omission causes the harmful consequences, vice versa.The fourth chapter is the act duty in the non-typical omission offense. First, it defines the act obligation to the duty which an obligor must fulfill actively to avoid harmful consequences according to criminal Law. Second, various formal and substantial theories on the sources of act obligation are detailed and commented. Last, the author believe that the sources of act obligation should be explored formally and substantially. Formally, act obligation results from criminal Law and facts, while substantially, it results from one's social function towards legal benefits. In a specific society, if oneholds a post or stand through which he should protect specific legal benefits widely acknowledged, then he has an act obligation to avoid harmful consequences substantially.The fifth chapter is equal-value in offense of non-typical omission. First, it discusses the emergence of equal-value problem. Omission is different from act in existence and norm structure. But why are they equally evaluated by the same criminal constitution? Second, it proves the possibility of equal value between omission and act. Last, the article probes into the standards by which to judge equal-value between omission and act. These standards include both objective and subjective ones. The objective standards are: (l)special act element; (2)Legal benefits are threatened really; (3)an obligor monopolizes the harm to benefits; (4)the harmful consequences are probably prevented. The subjective standards are intention or negligence.The sixth chapter is doctrine of legally prescribed punishment for a specified crime and offense of non-typical omission. First, it presents the meaning and contents of principle of legality. The principle of legality has developed from absolute and strict one to relative and flexible one. Second, the dissertation discusses whether punishment on offense of non-typical omission violates the principle of legality. According to the current criminal law, punishment on offense of non-typical omission contradicts with clearness demanded by the principle of legality. Last, the article gives some advices on legislation that special article should be stipulated in general provisions as follows:Article X Whoever has duty to avoid harmful c...
Keywords/Search Tags:Offense of non-typical omission, Causation, Act duty, Equal-value, the Principle of legality
PDF Full Text Request
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