A Theory On Duty Action Of Pseudo Crimes Of Omission

The crime of ommission is committed when the act unfulfills his or her obligation of act though he or she is able to.According to the standard whether a crime could only be committed by omission,the crimes of omission are further composed of genuine crime of omission and pseudo crime of omission.Owing to none clarified stipulation in criminal legislation,on the pseudo crime of omission,it is hard to be convicted in juridical practice,displaying the contradiction between legislation and judicatory.At second,our criminal theory concentrating on the crime of commission just research on the corporate requirements of crime of omission,but not enough on the obligation of the pseudo crime of omission.Therefore,it is an intractability how to unify the punishment confine of the pseudo crime of omission in juridical practice So that reinforce the study on the pseudo crime of omission is useful and important for consolidating the judicatory,consummating the criminal legislation,thriving the criminal theory.This article about the pseudo crime of omission are constituted of four parts.The first part is started with the basic concept about the crime of omission raised by different academician.The obligation of act is the crux of the research on the pseudo crime of omission.At present,there is no consensus about the concept and nature of the obligation of act in the the community of scholars.It is a problem about equivalence between the pseudo commission and omission in criminal theory in civil law that what status the obligation of act have and why the omission could make up of the constitution elements.This article put the emphases of equivalence on the equality of the illegal value of the corpus delicti constituted by commission and omission.The obligation of act is the sticking point to ascertain the equivalence between the pseudo crime of omission and the crime of commission.The second part,the origin of obligation which have gone through the developmental history from formal theory to essential theory on the souces is the most complex and controversial problem,particularly in the essential theory area.Some of the scholars in our country promoted the theory of unifying the formal and essential theory reorganized in this article,deeming that both of the formal theory and essential theory have its reasonable side. When studying in the origin of obligation of act,the formal and essential aspects shoud be paid attention to,However,the fomal aspect is preferential.At the end of the article,individual view on how to determine the origin of the obligation of act is recommended.The third part,research focus on the origin the obligation of act derived from.The current textbooks lay emphasis on the formal separation and seem to overlap each other and a mess so that could not satisfy the need of juridical practice.The origin of the obligation of act would be divided into there kinds:first,obligation set by law,second,the obligation demand in profession and business,third,the obligation of protection and supervision induced by the former behavior.This article has a expandedness about every origin of the obligation of act,trying to explore every origin at great length.The obligation of protection and supervision induced by the former behavior is most probed into.The former behavior is considered to be a value-neutral behavior that without normative evaluation temporary nowly,it must have some conditions to come into existence.My own attitude is brought forward on the long argument about whether the former behavior is limited to infringement,whether the former behavior includes the criminality,and whether the former behavior could be omission adhere to the premise that the former behavior is bare behaviorThe forth part,an analyse of the relationship between the pseudo crime of omission and the principal of a legally prescribed punishment for a specified crime in civil law.The principal of a legally prescribed punishment for a specified crime in civil law demand that the penalty for the actor shoud according to explicit regulation.However,many cases about the pseudo crime of omission is convicted beyond law at home and abroad.The acknowledgement of the pseudo crime of omission in our current criminal law just exist in some specific clause,otherwise,the other penalties for the pseudo crime of omission violate the principal of a legally prescribed punishment for a specified crime.The article figures out that the judicatory exploring model of legislation on general provisions first,when the condition permitted,stipulating the concrete crime in special chapter in the specific provisions based on the legislative attitudes of each country.