Impure Omission Study

Criminal law is one of long-history subjects. Similarly, offense of non-typical omission is one of questions which have been studied for a long time. Since legislatively created law era, it had stepped into people's research scope. One of ideals which people constantly pursuit is society life with good order. However, crime does damage to social order. Aim of criminal law is not just to punish people who execute serious illegal act, most important of all, to keep social legal interest from unlawful wounding, to prevent government agency from excessive, unjustified abuse public right of state. In fact, defending legal interest and forfeiting criminal is two aspects of the same question. Correctly handling their relationship needs not only reasonable explanation or application from judicial practice, but full construction from criminal theory. Offense of non-typical omission is just one of subjects which embody forging contradiction. Its theory even excesses forging contradiction in depth and extent. Offense of non-typical omission isn't expressly provided in criminal law in our country. Punishing it in judicial practice is directed by corresponding criminal theory. How to realize punishment to it in judicial practice in fulfilling doctrine of a legally prescribed punishment for a specified crime becomes a question that is worth researching.Author thinks that punishment to action is based on social harmfulness of action. Offense of non-typical omission is the same. Actor has exclusive duty of act and has ability to act to prevent results of public mischief from appearance. Actor doesn't carry out any action when there is not objective case to stop actor's behavior. Consequently, actor's omission results in damage of legal interest which is close contact with actor. When this kind of social harmfulness of action attains criminal punishment level, actor is convicted and punished according to corresponding article of crime of commission. Therefore, demonstrating offense of non-typical omission should deal with the following questions. Firstly, relationship between offense of non-typical omission and doctrine of a legally prescribed punishment for a specified crime should be solved. It is possible for offense of non-typical omission to convict and punish because of existence of over constitution of a crime. Secondly, author solves duty of act to offense ofnon-typical omission. Author demonstrates duties of act from three aspects: duty expressly provided in law, duty from contract and duty from previous action. In the end, based on forgoing discussion, author studies equal-value in offense of non-typical omission, i.e. judgment standard of offense of non-typical omission in criminal theory or judicial practice. Equal-value should be estimated comprehensive factors which include existence of duty of act, degree of duty of act, outcome of dangerous act and subjective circumstances while acting.This essay contains three parts:Part I is mainly discussed theory origin and legislation source about offense of non-typical omission. At first, arising opportunities about offense of non-typical omission in theory and justice are discussed from three aspects: order, legislatively created law and criminal law function. Secondly, in order to prepare for the following research, theories about offense of non-typical omission are studied in western countries and in our country.Part II is mainly discussed conception and over constitution of a crime about offense of non-typical omission. Firstly, concept is studied through classification about perpetration and criminal omission, norm structure of offense of non-typical omission. Secondly, over constitution of a crime is studied. Through analyzing count in specific constitution of a crime, characteristics of over constitution of a crime, theory basis to over constitution of a crime, and relationship between over constitution of a crime and doctrine of a legally prescribed punishment for a specified crime, it is correctly determined for over constitution of a crime about offense...