The Study Of The Omission Obligation

In recent years, Negative Crime as a theoretical problem has been puzzlled our country`s criminal legislation and criminal judicature, and the obligation is considered as the core center of omission. Therefore, obligation regarding is very important to solute the question of omission in the theory and practice`s value. This paper tests the theory and judicial practice from the perspective not as committed as the obligation of omission to explain. From the two aspects of form and substance to anslyze the occurrence of the obligation of Negative Crime, and put forward their own independent thinking and ideas, in order to look forward to provide a theoretical reference and help on China`s criminal legislation, and hope to provide the theoretical guidance on China`s criminal justice.Except the preface and conclusion, this article divides into five parts,there are about 50,000 words in the paper.The first part: The outlined of the theory of omission. Three questions are discussed in the first part. First, this article discusses the concept and the scope of omission. Second, this paper discusses the problem of which the form of not guilty can be punished. The third ,the value of such illegal of omission is discussed in this article.The second part: The obligation of omission. The following four questions are discussed in this section: First, the article starts to discuss the concept of obligation with etymonogical point of view, and sets out the substance of the meaning and the social roots of occurrence of obligation. Second, this paper disscuess the concept,characteristic and nature of the obligation, and discusses the characteristic of the obligation of omission from five aspects: Compulsory; Social result; Criminal responsibility; Legal nature; Objectivity. The third, this paper discsses the status of commission of crime of obligation of the penalty code. Writer discusses it from two aspects, which are the status of obligation in committed crime and the obligation in the system of the crime. The forth, this section carries out the theoretical and practical significance of research of obligation in the criminal law, and points out the theoretical value and pracrical significance of the research of obligation how to improve China`s criminal legislation and judical possess in the current society.The third part: Combing and analysis of the theory of obligations of domestic and foreign omission. This section discusses three questions: First, it starts to the theory of formal obligation to comb the theory of the domestic and foreign obligation, the writer combs and describes mainly the theory of formal obligation of Civil law, Common law, Taiwan and Mainland China. Second, it starts as a real obligation on the starting to comb and explain the theory of substantial obligation on the Civil law of Germany, Japan , Taiwan and Mainland China. The end , this part analyzed the theory of domestic and foreign formal obligation , and points out the diffence in concent and shortcomings in the theory of the domestic and foreign formal obligation. I followed to analyze the theory of substantial obligation , and also point out the lack and short of the theory of substantial obligation.The forth part: Thinking of the source of obligation of China`s criminal law. This section discuess two issues: First, the source of China`s formal obligation is identified, the writer thinks out sources in the form of five of their own, which draws on the basis of domestic and foreign criminal law theory , and in accordance with the actual needs of our modern society: Obligation under the law; Obligations of office or business requirements; Obligation arising from acts; Obligations arising from legal acts and Obligations arising from which under certain circumstances and based on the requirements of public order and morality. Followed ,the writer analyise the obligation arising from which based on the requirements of public order and morality in certain circumstances in qualitative of the theory, and also represent the necessity and feasibility of the obligation which a moral obligation rises to legal obligation in our society. Second, the writer gives his own independent thinking about the source of China`s substantial obligation, and thinks out his own independent ideas, which based on the basis of the control theory of Civil law and the Chinese scholar LiHong`s dual unity of form and substance doctrine.Regarded that the theory of the obligation of our country should be based on the center of the dominant theory, sets up the theory of the unity of form and substance. The fifth part: the substantial judgement of the obligation in judicial practice in typical cases. In this section, the writer made from his theory of substantial obligation to judge the substance of the obligation in three typical cases: Omission of the first deliberate murder of ZheJiang province,Plunge his wife commit suicide, Mr.Wang was sentenced to criminal cases do noting about them,and Harbin, two tourists drowned ,the owner neglecting intentional murder was sentented.