The Research On Penalty Of The Crime Of Impure Omission

The crime of the impure omission has profound significances in discussing both in the field of criminal justice and the community of criminal theory. With a view to contribute to China's legislative and judicial application of the crime of the impure omission ,this passage discusses the basis that the crime of the impure omission should be subject to punishment and analyze the reason of punishing the crime of the impure omission ,by way of starting from two cases of controversial cases.The article is divided into four parts. As follows:In the first part, the author discusses the case playback and focuses of controversy. Through two cases as well as the controversy been caused, this part shows that it still lack a unified understanding of the crime of the impure omission at present.In the second part, the author discusses the rational thinking of the value of the crime of the impure omission. By analyzing the concept of the crime of the impure omission and its social as well as normative values, this part clarifies that the penalties of the impure omission have a proper social foundation and normative basis and it is justified to be criminalized. First, the article defines the concept of the crime of the impure omission, and insists that the crime of the impure omission is not limited to results guilty and is not achieve the form of provision of crime. Secondly, in the perspective of analyzing the harmfulness of the impure omission to society and the achievement of criminal law protection, this part clarifies that penalizing the crime of the impure omission has social function and can highlight the function of Criminal Law. Thirdly, in this part, the author analyzes the structural characteristics of the crime of the impure omission and the relationship between legality and the crime of the impure omission in order to prove that penalizing the crime of the impure omission has a specific normative values.In the third part, the author clarifies that penalizing the crime of the impure omission is in accordance with the objective element of criminal. First, perpetrators have the obligation to action. The action is positive, double, specific and historical. The obligation to action is an independent factor in the system of crime, and its source can be identified on two levels, that is, the form level and the substance level. Secondly, there exist facts of omission. According to Marxism View of Practice, omission is also an action. Omission means do not behavior as the expectation of the law. Thirdly, there exist hazard results or the danger of hazard results. Fourthly, there exists causality. The causality is related to the obligation to action, and depends on another causality existed. Fifthly, there exists the possibility of action. It is independent of the obligation to action.In the fourth part, the author comments cases and suggest legislative actions. The author re-comments the former cases in the article on the basis of analysis, and points out that it is imperfect in the current legislative field, which causes many a justice decisions debatable. In the end of the article, the author proposes some immature suggestions on legislative field.