Study On The Legislation On Offense Of Non-typical Omission

Criminal law is one of long-history subjects. Similarly, offense of non-typical omission is one of questions which have been studied for a long time. Since legislatively created law era, it had stepped into people's research scope. One of ideals which people constantly pursuit is society life with good order. However, crime does damage to social order. Aim of criminal law is not just to punish people who execute serious illegal act, most important of all, to keep social legal interest from unlawful wounding, to prevent government agency from excessive ,unjustified abuse public right of state. In fact, defending legal interest and forfeiting criminal is two aspects of the same question. Correctly handling their relationship needs not only reasonable explanation or application from judicial practice, but full construction from criminal theory. Offense of non-typical omission isn't expressly provided in criminal law in our country-Punishing it in judicial practice in fulfilling doctrine of a legally prescribed punishment for a specified crime becomes a question that is worth researching.Author thinks that punishment to action is based on social harmfulness of action. Offense of non-typical omission is the same. So the legislation for offense of non-typical omission now assumes even greater importance.This essay contains four parts:The first part studied the theory development and conception about offense of non-typical omission .The theory development of non-typical omission had undergone three phases: The first phase is the theory original history about non-typical omission; the second phase is the beginning phase about study offense of non-typical omission; the third phase is the theory value of Criminal law .The theory development begins from modern times in China. This article defined offense of non-typical omission as the person who answer for duty of act that prevents the happen of victims by some production and comparison for offense of non-typical omission.The second part studied the legislative basis of offense of non-typical omission. Firstly, author produced the relationship between offense of non-typical omission and principle of a legally prescribed punishment for a specified crime, and through the form dispelled the conflict between the command norm that be offended by offense of non-typical omission and prohibition norm in Criminal Law, and added some provisions about offense of non-typical omission. Thus, it can dispel the doubt of the conflict between offense of non-typical omission and principle of a legally prescribed punishment. Secondly, author produced the equivalent value about offense of non-typical omission. This section talks about the origin, quality, judge standard of the equivalent value .The yardstick of equivalent contains some hands: 1.actor has act-duty to execute certain act; 2. actor has ability to act the action that act-duty offered; 3. there is no obstruction when the actor act certain duty; 4.actor has not acted the certain act that the duty offered, thus resulted in the inflict in law profit.The third part studied the set-up conditions of offense of non-typical omission. This essay thinks the set-up conditions of offense of non-typical omission are: 1.actor has act-duty; 2.actor has the possibility to fulfill obligations; 3.act has victims; 4.there is cause-effect relationship between offense of non-typical omission and victims; 5.there is the equivalent value in omission and act. The duty-origin of offense of non-typical omission is: 1.the duty from Law; 2.certain duty from job; 3.certain duty from the actor's preceding action; 4.certaion duty from juristic act. The possibility of fulfillment obligations described from the judge standard of possibility, choice in fulfillment mode, and the level of fulfillment obligations. The judge standard has: 1.the cause and effect has requirement or not; 2. the cause and effect has correlation or not.The fourth part studied legislative perfection of offense of non-typical omission, including legislative styles, legislative methods and legislative suggestions of offense of non-typical omission. The legislative styles include three types: 1. Adhering to the firm principle of Nulla poena sine lege (no penalty without a law), except for express provision in the law, there is non recognition of other concepts about offense of non-typical omission. 2. In the judicial practice there is offense of non-typical omission, but in the legislation there is no such provision. 3. There is the firm provision about it. The legislative methods of it are discussed from conviction and measurement of penalty.According to the above discussion, the author thinks that the provision of offense of non-typical omission should be: an actor has a special legal obligation of implementing some behavior and he has ability to do so but he does not, i.e. the crime that can be acted by way of omission or action is carried out by omission and brings about hazard results, under the circumstances, the actor should be punished by the law. These so-called special legal obligations refer to the obligation stipulated in the law, the obligation required in office and in business, the obligation caused by the actor's previous behavior, the obligation caused by legal behavior and other action obligations.Therefore, as far as the essay is concerned, we can offer the reasonable evidence for everlasting and punishment about offense of non-typical omission by above legislative proposal.