Study On The Basic Theory Of Impure Omission

That the omission is a crime not only get the support of academic theory but alsoget the confirmation of judicial practice. Even if the scholars or the judiciaryrecognizes the behavior of omission, they will make the exact opposite conclusion ofcrime or uncrime about the same case as a different understanding of the basic theory.In addition, as a different understanding of the basic theory, they may make a crime orseveral crimes diferently. The research of omission′s basic theory help to deepenunderstanding and interpretation of impure omission and to guide judicial practice to acertain extent. The construction of omission,the behavior of omission, the distinctionbetween acts and omissions, a causal relationship, the equivalent, a source ofobligations, the distinction of pure omission and impure,an accomplice, and so on,belong to the Impure as guilty of the basic theory, the paper mainly discusses theimpure as guilty of the basic categorise and a causal relationship, focusing on theequivalent and the source of obligations.The basic categorise of the impure as guilty of the omission, the article focuseson the history of the development,the behavior, the concept and the construction. Theomission has experienced the obligations of the old law, the causalrelationship,illegality and guarantor since the19th century. In this developmentprocess it is inevitable to solve the behavioral problems,"no acts no criminal ",act isthe basic elements of a crime,as the causal behavior, the purpose behavior, socialbehavior and in terms of the theory of personality behavior that has been formed,social behavior theory seems to be able to better explain the behavior.There are threedifferent ideas about how to make a definition of omission, among which, the view“the impure omission is a crime that is cuased by omissoin but cauesd by behaviorusually”is more reasonable. About the specification structure, there is a dispute,theviolation of the prohibition,the violation of the command norm,or both of that.Command belongs to obligations specification command, from another point of view,the prohibition belongs to the obligation norms too. Impure omission can beconsidered to breach of obligation norms.There are theorise of causality uncommitted, quasi-causal relationship and the sure in civil law, negative and positive in China’s criminal law theory. Causalrelationship has been considered necessary elements of crime established, althoughsome scholars advocate objective imputation instead of a causal relationship, but itshould be considered an essential link between behavior and results in the cursce ofconviction. It should also be aware of the diversity of the causal relationship, thedirect cause, the indirect causes, the main reason, and secondary causes. Causalityshould be objective, The Condition theory is more reasonable; it can explain impureomission causality.From the ontological point of view, impure omission different from the actioncrime, if both apply to the same article, under civil law class crime constitution theory,first need to determine the constitutive requirements compliance. German scholarsNagerla believed,"causing a certain result" was not a necessary characteristic ofelements behavior,the main characteristic was determined by man’s willing,whichshowing an "active state".If omission possessed this feature,it was really called thebahavior belonging to the constitution,then with action was regulated by the samearticle. With the scholars’ bored inquiry, the theoretical results colorful, morepowerful view was that impure omission was not satisfied with the constituentelements of action crime, but with it’s own constituention which was not written outas guilty of the constituent elements.To determine the elements, three aspects must beconsidered in, first, as the existence of action constituention,secondly, the existence ofthe command to prevent a result, thirdly,omission and action’s violation of the normsmust be as illegal and responsibility for the content of the Elements as equal. In short,there wae only omission’s equivalence separated from the fact,omission was justmade.As equivalence judgment, the foreign theory had subjective, objective, whileseparation and constituention. Based on the three-class criminal system, forconstructure is of illegality presumption functional, equivalence judgments should bejudged at the illegality stage, but omission and action both is satisfied withconstructure, a equivalence can be confirmed. Elements includes not only theobjective elements, but also contains subjective elements, the considerable of theconstrcture elements needs of the subjective and objective elements of a considerable,and to this end, sub-rule and the element is appropriate.Domestic scholars in the equivalence problem, there are diverse viewpoints.Certainly equivalence theory, negate the theory. Certainly by internal, how to determine equivalence, the equivalence is an independent elements? Also there is adifferent proposition. This paper argues that under the four elements constitute acrime theory, equivalence is not necessary to study separatly. First of all, do not studythe equivalence does not violate the principle of legality. China’s Tong said that,omission is a crime which is caused by action usually,but is made by omission,soomission and action can be applied to the same article.Considering the equivalent,omission will be as placed in a subordinate position, it is possible not to cinvict andpunish omission as a lack of equivalence,which contrary to the principle of legality.Associated with this equivalence,that view that it can limit the scope of omission isdebatable. Equivalence is an abstract value judgments, it is difficult to determine it,the same as the way of intentional homicide: shootings, knife kill, drugs to kill... it isdifficult to judge whether they have equivalence, etc. up to only show these arebeyond the people intolerable extent, have the same nature of property-serious harmto society or the legal interest invasive, it is necessary to be criminal penalties,it is notnecessary to judge the amount of harm to society, On omission, just conseder thecause of the results of people intolerable, that the omission has serious social harm orlegal interest invasive, there is no need toconsider "action" as reference to determinethe two by the equivalence.If so, then all omission will receive the same punishmentas action crime, in fact,the opposite conclusions show omission is sentenced lighterthan action crime. Our country discusses the nature of the omission before theestablishment of crime:... such violations is of omission, but it is the same againstsosciety as a positive way, in essence, no difference. When reaching a certain levelsuch violations constitute a crime....... Not as a reason why omission and actionbelongs to the same hazard behavior and can also set up the crime, in the finalanalysis the reason is action is instead of omission and both are againstly socialrelations samely (equal to the negative value). How do see the "equivalent"? Weargue that Tong said wants to show omission and action has the same harm,so itdiscusses the nature of behavior before stablishment of crime. the two parallelrelationship. Specific to the actual cases, as a serious harm to society, it mayconstitute a crime; it will make omission subordinate to action if judging equivalencebefore judging whether or not to constitute a crime.In addition, Tong said wants toshow both have the same "quality"-a danger to society, rather than emphasizing bothhave the same "quantity"-a danger to society extent. This omission includes not only impure omission, also includes the pure omission, if the " equivalent "refers to the"quality "and" quantity " equivalent, then, pure omission has the same "quality" asaction,not the same "quantity" as action, so pure omission can not constitute a crime,which is clearly inconsistent with the law. In specific cases, the establishment of theomission depends on their own, do not need to determine whether as equivalent.On a source of obligations-the obligations of the form of theory, both in civillaw and common law, has a different proposition from a source up to seven sources,viewpoint diversity. This article generally endorsed the four sources held by most.First, the obligations expressly provided by law. In the program, that other laws mayalso provide a source of obligations, but not limited to criminal law provisions.Second, duties, obligations of the business requirements, as well as the obligationsarising from the obligation of supervision and control of the sources of danger. Themainstream second source of obligations does not include the obligations arising fromsupervision and control of dangerous source, but this paper regards it is reasonable toput it together with the obligations arising from requirements of duty and business. Inthis program, this paper discusses the impure distinction as the relationship betweenimpure omission and the identity crime, and the identity crime committed by omissionand the non-identity guilty. Third, an obligation from the legal act. The legal actsmainly refers to the behavior of the contract, the contract is not limited to the writtencontract. Willing to take the behavior may also arise as a obligation. This paperdiscusses the jurisprudence of voluntarily act. Fourth, an obligation coming from thefirst act. This article thinks that the first behavior is not limited to the responsibility ofbehavior, not limited to the behavior of the actors, not limited to illegal acts, but thefirst act must be positive act. In addition, this article focuses on the criminal behaviorcan become the first behavior, and relationship between omission caused by criminalbehavior and consequential offense. Criminal Rules are certainly the main obligationnorms, norms are broken, they have an obligation to comply with the specifications,once the conduct in violation of the obligation norms, only to assume theresponsibility of the criminal law, but not prevent the result of a legal obligation. Onthat basis, the article discusses the relationship between omission caused by criminalbehavior and consequential offense,thinks they both do not overlap, the former set up,the later would not be true, and vice versa.The corresponding form of deontology is the substance of deontology. Form of obligation on the source of enumerated obligations classification and explain,it is ofcertainty and clarity. With the establishment of the substance of Illegality and thespread of independence of thought about criminal law,"Why an obligation arisingfrom the formal requirements ","what the real story behind the form of obligations ","other laws aside, whether or not the possibility to produce guarantor obligations justfrom the Criminal Law", with these questions, the West German criminal law scholarswill avoid structural differences between act and omission to explore thesubstantiation of the obligations from the relationship between actor and result,oractor and victim and, thus forming a distinctive doctrine, and affect other countriesand regions. In this paper, on the basis of the analysis of various theories, thesubstance of an obligation is "protection of legal interests". However, as positivecrime and impure omission infringes the same legal interest, since as guilty of theoffense against legal interest, then there is no need to study impure omission. In otherwords,"protection of legal interests"as the substance of an obligation only has adeclaration of the meaning, in order to limit the punishment range,"dominationtheory"and"the facts bear said"arised, there is suspected of obligations sourceequivalent to the establishment of omission. Therefore, the in impure omission basictheory ther is no need to study the substance source of obligations.