Study On The Assistor By Omission

Assistor by omission, standing in the field of behavioral offense and joint criminal, is a crime of aiding a criminal by omission.Aiding a criminal by omission, which constitutes a crime, is a dominant ideology in foreign criminal theories. However, this is a theory that worth further research in China. On the basis of crime theories, combined with criminal legislation and justice, this paper has a research on the nature and criminal liability of the assistor by omission, which can help to perfect China's criminal legislation and justice.This article can be divided into four parts. The first part is a general illustration of the nature of assistor by omission. It belongs to criminal omission and joint crime. The initial purpose of researching on theories of assistor by omission is to investigate the assistor with criminal responsibility. There should be common places between assistor by omission and assistor by action. So, assistor by omission finally belongs to the joint crime. We should study the assistor by omission from the perspective of joint crime, and take the omission way as the problems and difficulties in our researching.The second part introduces the subjective characteristics of assistor by omission, which is with the help of its intent. First, it explains psychological nature of the intentional crime from the recognition and inclination two factors. Second, it illustrates that the establishment of assistor by omission has double intentional psychology in the subjectivity. We must recognize that other persons are implementing or will implement a crime, and at the same time we should be aware of their omission is a help to others'crime.The third part introduces the objective features of assistor by omission. The constitution of crime, which combining the basic theories of joint crime and omission theory, has its characterization of complexity and particularity. Firstly, the establishment of assistor by omission must have the legal action obligation. Secondly, there must be a possibility of action. Finally, there must be the assist action that can aid the crime which has the causation relationship between the assistor by omission and the achievement of the bad result. There has two periods of assistor by omission—prior help and help during others' crime. And there is only the substantial assistance, without the existence of the spirit help. The fourth part is about the criminal liability of the assistor by omission. The crime of the assistor by omission is a kind of lighter joint crime, and its criminal liablity should reduce the punishment on the basis of comparing varieties punishment principle. Penalty and non-penalty are the two ways of realizing the criminal liability of the assistor by omission. Because of this combination of its own characters, realizing the criminal liability should be mainly based on the way of non-penalty punishment.