Study On Pseudo Crimes Of Omission

It is generally accepted that action, in the field of criminal jurisprudence, can be divided into two basic forms, which are crimes of commission, which are violations of prohibitive stipulations, and crime of omission, which is also further composed of genuine crime of omission, which are violations of commanding stipulations, and pseudo crimes of omission, which are much complex, for its duty of act fail to be regulated in the criminal code, which has to be clarified by non-criminal law, which is inclined to violate the human rights, which is the basic notion of modern society. In one word, the duty of act in pseudo crimes of omissions should be confined in a certain scope, which can meet the demand of the protection of human rights, which is the basic value of the criminal law. How to produce a harmony of the protection of the human rights and the social security is not only a theoretical problem to be resolved promptly but also a emergency problem of justice practice, which need us to explore the proposition of pseudo crimes of omissions in depth such as its concept and duty of act, as well as its the causality and equal-value.This thesis, besides the introduction and concluding remarks, is mainly divided into four parts:The first part briefly describes that, there has been a long period of transmutation of crimes of omission in the human legal history, during which there are few of provisions punishing pseudo crimes of omissions, which result from the existence of legal system of obligation standard and analogy in the feudal criminal law, leaving no room for existence of the theory of pseudo crimes of omissions. The modern society, which is characteristic of popularity of concept of human right, which roots in our mind that, as far as the law is concerned, we can not do anything at the price of the human rights, and rapid development of science and technology, which is attribute to the increasing numbers of risk of security of society, is responsible for the generation and development of theory of pseudo crimes of omissions. The second part,the concept and the character of act of pseudo crimes of omission, firstly explores the character of act of omission on the base of evaluating relative opinions, which is still in a theoretical dispute. Secondly, this part also research the concept and character of pseudo crimes of omissions, as well as the distinction between genuine crime of omission and pseudo crimes of omission, which is the base of explores other relative acadamic dispute.The third part, the basic theory of pseudo crimes of omission, which is the core of this article, can be divided into three levels. In the first level, it demonstrates substantive duty of act and formal one of pseudo crimes of omission, argues that the scope of duty of act should be confined by the way of combining substantive duty of act with formal one, meeting the demand of the notion of protection of human rights, which can get rid of the malpractices of other theories from one-sided angle. In the second level, it demonstrates the equal-value of pseudo crimes of omission, holds that the standard of equal-value of pseudo crimes of omission should be researched within the scope of duty of act, rather than beyond the scope of duty of act, because the duty of act reflects not only the basic criminal fact and composition elements of pseudo crimes of omission, but also a basis for judging the nature and kind of a crime. In the third level, it demonstrates the causality of pseudo crime of omission after evaluating various theories in the criminal jurisprudence, holds that emphasis should be placed on value judgement, rather than only on realitic judgement, that a person in the human society who enjoys various conveniences, which is the achievement of other people through efforts, should make effort to do something for the happiness of the human society.The fourth part, which is the conclusion of this thesis, researches the issue of improvement of legislation of pseudo crimes of omission, which proposes to increase the provision of pseudo crimes of omission in the general provisions of Chinese criminal code and genuine crime of omission in the special provisions of Chinese criminal code, which makes the theory of pseudo crimes of omission more proper, which can guide the justice practice in reality.