A Study On Equivalent Property Of Non-typical Omission Offense

The theory of is has always been the focus and difficulty of the study of criminal law.There is a constant divergence of doctrine and jurisprudence around a number of issues.Now both in dogma and in practice the punishment of offense of non-typical omission has been given a positive conclusion.Even so the understanding is different in theory and practice and different people do not necessarily have the same point of special cases.Considering the complexity of the theory of omission we should intensify our research so that the problem of omission is compatible with other theories in dogmatic and can reasonably delimit the scope of punishment in practice.Most studies of offense of non-typical omission consider whether or not it violates the principle of legality and focus on the substantial source of act obligation.With the development of our society,people's consciousness of freedom and right is also being strengthened.The criminal Law,as the final means of punishing illegal acts and maintaining Social order,should guarantee civil liberties to the maximum extent.The criminal law and other laws do not directly stipulate the elements of the establishment of the crime of omission and This is a choice made by legislators after considering the economy and reality of legislation,which should not be condemned.However,it is precisely because of the lack of legislation that the judicial practice is extremely arbitrary in punishing the crime of omission.Only three points: the actor has act obligation,behavior possibility and the possibility to avoid the result cannot direct affirmation of the establishment of the crime of omission.Equivalent property should be the core in the judgment of the crime of impureness and omission.To this end,more elements should be examined in order to reasonably define the scope of punishment.This paper focuses on the theory of equivalent property and deeply explores the structure of offense of non-typical omission.On the basis of proving that it does not violate the requirement of prohibiting analogies interpretation,analyzing theequivalence between omission and action and informing systematic judgment method.The first chapter mainly discusses the distinction between act and omission,which is the premise to judge the equivalence of omission.On the basis of advocating a distinction from the perspective of the theory of value,claiming that the relationship of legal interests should be regarded as the criterion of differentiation.Creating or increasing risk is an act while in the face of a causal process of infringing legal interests,it is an omission to take advantage of this opportunity not to rescue legal interests.The second chapter is the basic discussion of the theory of equivalence.On one hand,it is concluded that the offense of non pure omission is " an indirect violation of the prohibition of the constitution of an offense in the form of a violation of the code of order",solving the tense relationship between the punishment of innocent omission and the principle of legality.On the other hand,explicating that equivalence is the equivalence of the entire constituent fact centered on behavior.And it is pointed out that the obligation as such is an integral part of equivalence and not the opposite.The third chapter focuses on the status of guarantor,pointing out that the theory of creating the dependences situation of legal interest is the more reasonable basis for the origin of the guarantor's status.And on one hand,the "self-creation" is further explained by the family relationship and fertility system.On the other hand,the occasion of advance acts modified the theory to a certain extent.The fourth and fifth chapter are on the criterion of narrow equivalence.After pointing out the inadequacies of subjective theory,objective theory,the theory of duty crime and controlling the reason of results,this paper learns from the thought of controlling the reason of results,propsosing that on the basis of reasonable limitation of the scope of guarantor,equivalence should be judged by potential dominance guided by objective imputation.And it should remind of the situation of no-fault and the existence of the means of limitation because there is no need to judge the equivalence of these two cases.The sisth chapter mainly discusses the accomplice of omission.We should distinguish between the principal offender ofomission and the accomplice by the qualitative difference of causality.In addition,this paper fully affirms the common principal offender of omission conditionally affirms the indirect principal offender of omission and negates the establishment of abetment.So far,this paper proposes a more complete equivalence judgment method than the traditional view,that is to say,the detailed steps to judge the crime of impureness and omission.In our country,we strongly advocate the hierarchical crime theory system and strive to improve the present situation of the doctrine of criminal law.It is not only of great theoretical significance,but also of great value of judicial practice to strengthen the study on the equivalence of omission.Based on the present situation,this paper chooses the equivalence of the crime of impureness and omission as the main research object.Based on the criminal law of our country and drawing on the advanced experience of foreign countries,the application of equivalence is studied in depth in order to In order to be able to break through on the basis of existing theories and respond effectively to the request of the systematization of criminal law theory and the adaptation of judicial practice in our country.