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Research On Several Issues Of Non-standard Omission

Posted on:2009-01-31Degree:MasterType:Thesis
Country:ChinaCandidate:X R YuFull Text:PDF
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The theory of non-standard omission began from German law in 19th century. The development roughly experienced the following stages:causation theory,illegal act theory,types of doer theory,the constitute elements agreement theory.Now the issue of non-standard omission mainly concentrates on the recognition of causal relationship,the conflict between the punishment of non-standard omission and the principle of legality,the definition of the duty of action etc.Non-standard omission can be defined as:"the doer who has a specific legal duty of action,can but failed to fulfill the specific legal duty of action,which harms the society seriously and constitutes a crime which can also be committed through action." The difference between the non-standard omission and the action criminal mainly lies in the objective aspects.The objective constitute elements of non-standard omission should include:the specific legal obligation of action,the possibility to act, the fact of omission,the harms or possible harms of omission.The causal relationship in non-standard omission is objective.The factual causation lies in the fact that the action can prevent the occurrence of results.The causal relationship in non-standard omission is the unity of fact causal relationship and legally causal relationship.Under the condition that the actor can prevent the outcome of the case through "action",but fails to act if he/she has specific legal obligations,he/she can be punished as an offender because it can be recognized as legal causal relationship between the omission and the harmful result.Non-standard omission violates the mandatory norms.Criminal norms are norms of judge as well as a code of behavior.It includes the punishment to the violation of prohibitive norms as well as mandatory norms.The understanding of the principle of legality moves from the original tradition of absolutism to the present relativism.The author believes that the punishment to non-standard omission does not violate the principle of prohibiting analogy in the principle of legality.But the duty of action should be clearly defined in the Penal Code.Otherwise,the punishment to non-standard omission violates principle of legality.The core of non-standard omission is the source of the obligations of non-standard omission.And the obligations should be defined form two aspects of form and substance.Only by doing so can it help the unity of the administration of justice and the reasonability of punishment to non-standard omission.This paper gives some legislative proposals to Chinese Criminal Law.The author believes that some relevant provisions about the punishment to non-standard omission should be added and the duty of action of non-standard omission should be clearly defined.
Keywords/Search Tags:non-standard omission, prohibitive norms, mandatory norms, the principle of legality, the causal relationship, the duty of action
PDF Full Text Request
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