Research On The Obligation To Act In The Crime Of Non-typical Omission

Criminal omission usually takes two forms: typical omission and non-typical omission. The act offence violates the forbidden norms of criminal law and the typical omission violates the ordering norms of criminal law. The non-typical omission is the crime that can be committed by act or failure to act. So, the criminal law theory calls this kind of crime as crime of non-typical omission. But not all the omissions with causal relationship between the omission and the consequence can constitute the criminal omission. Only important omission in criminal law---failure to act which is equal to the act offence in infringing upon legal rights stipulated by the criminal law in advance can be punished in accordance with the clauses of act offence. There is no prescription on omission in principle in the general provision of Chinese criminal law, neither the special provision is. As a result, non-typical omission has been a big challenge to the criminal theory and practice. Because omission is not mentioned in criminal law, some experts think that punishing the omission violates the principle of a prescribed punishment for a specified crime. In other opinions, the equivalence between act and omission, as a requirement, should be added into the constitution elements of non-typical omission because in violating the legal rights, the omission and the act offence in related clauses are equivalent.So, in the perspective of social danger and the demand of criminal policy, punishing the non-typical omission meets the requirement of the principle of a prescribed punishment for a specified crime. Referring to the papers of Germany, Japan, Taiwan and mainland scholars and combining the criminal theories and related cases, this paper makes detail analyses of the classification and obligation source of non-typical omission and the legal status of obligation of act and omission.In the author's opinion, the act obligation source of non-typical omission should be united in form and essence. To solve the conflicts in punishing non-typical omission, we should take the position that both act offender and omission offender fully control the causal development process of violating legal rights and essentially judge whether the actor bears the condition of constituting non-typical omission. If the actor actually and exclusively controls the occurrence of consequence, or actually in the position of controlling the source of the occurrence of risks, the actor can be considered bearing the obligation to act and his failure to act constitutes non-typical omission because of the equivalence between act and failure to act.