The Impure Committed

Though offense of Pseudo-Omission Crimes was proposed nearly two hundreds years ago, the issue has been a stubborn matter in criminal law; And different kinds of opinions in this area makes it necessary to do further study. The subject of this dissertation is the fundamental elements of the offense of Pseudo-Omission Crimes, including the concept, the causality and the act duty, the omission action, and the relationship with the principle of legality. The paper consists of eight chapters and is divided as follows:Preface. This chapter briefly introduces the theoretical status quo of the offense of Pseudo-Omission Crimes and the analysis of the quo is that the existing criminal theories cannot interpret the scientific concept of behavior. On the basis of the analysis, this part aims at the argument and solves the concrete logical approaches of basic problems of the offense of Pseudo-Omission Crimes.Chapterâ… . The history and legislative outline of the offense of Pseudo -Omission Crimes. There are two parts in this chapter. The first part introduces the history of the offense of Pseudo-Omission Crimes in continental law system whose main steps are: the seeds of doctrine of obligation and the doctrine of causality, infraction and bails. The second part presents the legislative conditions of the offense of Pseudo-Omission Crimes in the world, which includes two main law systems. The concept of the offense of Pseudo-Omission Crimes does not exist in common law system, whereas in continental law system, it usually employs general provisions to legislate the offense of Pseudo-Omission Crimes which involves the prescriptive matter of obligation of omission, equivalent and sentencing.Chapterâ…¡. The act of omissions. The notion of act is the foundation in the criminal law system. According to different criterions the act can be differentiated to several types, yet, of all types the most perplexed is the act of omissions. In order to demonstrate the issue of the act, in theory multiform doctrines of the acts are put forward, including the act of natural causality, act of purpose, social act theory, act of personality and passive act theory and the like. Nevertheless, these doctrines do not give a convincing interpretation of the issue of the act of omission which is still a stubborn problem in the existing criminal theory. By analyzing the primary existence and the act of mankind-labor element, the aim of this chapter is to generalize the universal sense conception of human act abstractly. That is, the human act should be a procedure in which the objective conditions should be controlled by the main body or should be controlled impact the state of the given objects; there are four basic factors, namely, the objective conditions, the main body, the subject and the object. Compared with former other theories, the theory of control act has two most outstanding characteristics. One is claiming the subjective element as the pivotal section of act, the other is specially emphasizing the element of objective condition depended upon by the act. However, these two remarked contents, which always ignored by former other act theories, are the breakthrough for traditional act theory.According to the theory of control act, the act of omissions refers to a kind of actions which the actors should control the process of natural causality or actions of others. The fundamental difference between the act and the acts of omissions lies in the different objective conditions upon which the two rely. The objective conditions depended upon by the act of omissions only refers to the course of natural causality and the actions of others but do not contain the bodily conditions of the actors, which, however, is an essential unit of the act. To be more exact, the actors know or shall know the course of natural causality or the nature of others and terminates the bodily conditions of the actors themselves purposely or inadvertently to impact the subjects; then it is objective conditions beyond the actors that influence the state of subjective existence. In this way, 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. Based on this, it is easy to interpret the act of omissions.Chapterâ…¢. The notion of the offense of Pseudo-Omission Crimes. Definiting the notion of the offense of Pseudo-Omission Crimes involves the standard for distinction both between the acts and the act of omissions and, the criminal acts and the criminal omissions, the denomination and definition of the offense of Pseudo-Omission Crimess, and the categorization of the criminal omissions.The division between the criminal acts and the criminal omissions bases upon the differences between the acts and the omissions, or bases upon the actors' actions of practical offense. According to the theory of control act, the act of omissions refers to a kind of actions which the actors should control the process of natural causality or actions of others. The fundamental difference between the act and the acts of omissions lies in the different objective conditions upon which the two rely. The objective conditions depended upon by the act of omissions do not include the bodily conditions of the actors, which, whereas, is an essential unit of the acts. In other words, the difference between the acts and the act of omissions lies in whether the bodily conditions of the actors have impacted the existence of the criminal objects. In this case, the criminal acts mean the actors do omissions during the offence. The difference between the two base upon whether the bodily conditions of the actors have impacted the criminal objects. Because the criminal objects belong to objective circumstances of a crime, the definition between the criminal acts and the criminal omissions should not be detached from the concrete provisions of the criminal law norm. Upon above mentioned criterion, it is easier to distinguish certain criminal acts which seemed apparently complicated.Although there are various classifications of the criminal omissions in theory, it is most theoretical and practical to divide the criminal omissions into Genuine Omission Crimes and Pseudo-Omission Crimes. The Genuine Omission Crimes refers to a kind of crimes which the actors perform an act of omission role and violate the rules of criminal law only accomplished by the act of omissions; and the Pseudo-Omission Crimes means the actors use the act of omissions to implement the crime which generally accomplished by the acts. These two crimes belong to the criminal omissions in substance, moreover, pure and pute. Hereby, theoretically these two criminal appellations are not appropriate. Compared with other imperfect names, these two appellations of the Genuine Omission Crimes and the Pseudo-Omission Crimes have been so for quite some time and received and extensive used in the law world, and here will still to employ.Chapterâ…£. Causal theory of the Pseudo-Omission Crimes. Since German scholar Luden questioned the causality of omission crimes in mid-nineteenth century, the theoretical circle of the criminal law of continental law system has never ceased to dispute and has not given a convincing conclusion. The reason why the causal theory of the criminal omissions will be this embarrassment is that the imperfections of the causal theory of traditional criminal law. Some imperfections like in systematic orientation, subject investigated and study task. In substance, the causality of criminal law is a procedure that causality of the actors' subjective offense impacts the object. In fact, judging whether there will be causality in criminal law is that judging whether the procedure between the actors' subjective offenses impact the objects and the occurrence of subsistent endangered effect accordant with each other. Or it is the procedure of logical reasoning that judging between the subsistent endangered effect and whether within the actors' subjective offenses rang caused the consequences. In sum, it is a matter that judging some subsistent endangered effect whether could bring into a certain criminal act.It seemed that it is natural conditions or actions of others caused the consequences because of the criminal omissions without the physical factors of the actors, therefore, the consequences apparently do not correlate with the actors. In this case, the only choice is to seek the linkage between the actors and the functioning objective conditions as well as the consequences within the range of subjective offenses of the actors. In the intended omission crimes, the actors know the development trend of a certain natural conditions or acts of others shall lead to some consequences which the actors ought to prevent by means of the bodily conditions but do not intervene; whereas in negligent omission crimes, the actors shall know or have been known the development trend of a certain natural conditions or acts of others can result in some consequences which the actors should control but not. This is the causal relationship of the omissions crimes.Chapterâ…¤. Pseudo-Omission Crimes 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 Pseudo-Omission Crimes, 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. Under the standard of the normal persons, if the normal persons are capable of knowing a certain criminal rules, and the acts mean meet the requirement of definite, if not, the acts are indefinite. In terms of Pseudo-Omission Crimes, the primary reason questioned from the definite principle of the principle of legality is that the criminal rules do not prescribe one of its based factors-the obligatory commissions; thereby the Pseudo-Omission Crimes do not meet the requirement of definite principle. And for the obligatory commissions of the Pseudo-Omission Crimes, the criminal rules do not clearly prescribe it because of the limitations of legislative technique, therefore this kind of obligatory could only been definited in theory, and theoretically, should only belong to the legal obligation. Considering the obligatory commissions of law, the normal persons may do not know the obligatory commissions on the law level, nevertheless, the certainty is that, it is maleficent or (according to the actors' basic senses of what is wrong) wrong at least known or shall been known by the normal persons to infringe the obligations, so the obligatory commissions do not go beyond the dimension of predict or understanding of the normal persons' abilities. In this situation, prescribed the components of Pseudo-Omission Crimes by the criminal law, on the one hand, is necessary, on the other hand, it is hard to say that the acts violate the definitude of the principle of legality even though the criminal rules do not prescribe the obligatory commissions for which do not go beyond the dimension of predict or understanding.The definite principle insist to limit the process of judges adapt themselves to the criminal rules, and the core is forbidden analogizes, that is, forbidding the judges create punitive provisions out of the criminal rules, yet broadening interpretations are allowed. The circumscription between the forbidden analogizes and the broadening interpretations is the most possible expression which only performs an excludable function upon condition that the conclusions do not conform the possible expressions clearly; whereas these conclusions that belong to the critical regions of the possible expressions should be distinguished from substantive justice, that is, the conclusions must be in accordance with the common sense, the common truth and the common thinking. However, the offense of Pseudo-Omission Crimess and the theory of definiteness, the opinion of scholar is that the punishment of the offense of Pseudo-Omission Crimess is the analogize falling to the criminal acts constitutive requirements, so in this case, the conclusions violate the principle of legality. Whereas the thesis holds that, according to the provisions of the whole laws, the criminal omissions infringe the prohibitive norms as well as the rules of order. And because all the specific provisions of criminal law are the prohibitive norms, and both the criminal acts and the criminal omissions violate the prohibitive norms of criminal law, the constitute requirements of a certain criminal act as well as the criminal omissions'. Therefore, the punishment of the offense of Pseudo-Omission Crimess is not analogize apply the criminal acts' constitute requirements but the constitute requirements of the criminal omissions itself. In a word, the punishment of the offense of Pseudo-Omission Crimess is in accord with the definiteness of the principle of legality.In continental law system, the imperfection of crime systems and the cognition error of the offense of Pseudo-Omission Crimess' 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 ontological structure between the offence of Pseudo-Omission Crimess 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 Pseudo-Omission Crimess must be some problems which could be solved by the equivalence theory. However, the thesis holds that, the constitute requirements of the offense of Pseudo-Omission Crimess and the criminal acts should be and should only be the same nature equivalence though judged by the same statutory sentence. And for the summarize of the constitutions of individual crimes have the same properties of criminal phenomena, that means, the equivalence has been solved at the legislative stage and it is not necessary to judge in theory.Chapterâ…¥. The act duty theory of the offense of Pseudo-Omission Crimess. The act duty theory is the core of the whole theory of the offense of Pseudo-Omission Crimess. 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's. the act duties of the offense of Pseudo-Omission Crimess 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 (by means of the acts ) to protect the legal interests duties beyond the criminal law.And there are two possibilities which can cause the law duties of the administrative law, the procedure law and the civil law (namely the origins of the act duties): (1) the law expresses provisions; (2) juristic acts. The duties of the law express provisions include the obligations enacted by the legal effect rules and regulations and rules of conduct, the constitutional obligations crystallized by the branch laws and, the duties enacted by the whole branch laws rules. And the act duties caused by the juristic acts include the advance behaviors and illegal acts of public order and good custom in specific cases, contract obligations and voluntary acts, explained in detail as follows. The act duties caused by the contract obligations should be based on the premise of the contract in effect; The act duties gists caused by the voluntary acts ( non-cause management ) should root in the motives of the voluntary acts; The act duties caused by the illegal acts of public order and good custom should be restricted within the civil activities; And the advance behaviors, which in behavior way shall only be acted, can be lawful acts or illegal activities (and here, the illegal activities can be common offenses as well as criminal acts ) and, obligated behaviors or completely unanswerable behaviors as well.Besides, there is a kind of theory called the substantial theory of act duty about the origination of the act duties. By criticizing the formal theory of act duty which cannot interpret the substantial bases of the offense of Pseudo-Omission Crimes, various so-called substantial theory of act duty appeared. The thesis denies the importance of the substantial theory of act duty, for which there are some fundamental errors in recognition of nature of act duty, theoretical status quo, logic interpretation and internal motive. Conclusion: On legislation of the offense of Pseudo-Omission Crimes. The legislation of the offense of Pseudo-Omission Crimes mainly involves the legislative method and legislative contents. To the legislative method, the thesis claims to employ stipulating in the general provisions; and to the legislative contents, the only way is to prescribe the nature of the act duties and sentencing. Thereafter, the thesis constructs the legislation of theoretical scheme.