Perspective Of Legality Is Not Really As Guilty Of Study

Negative crime, especially offense of non typical omission, is always the unsolved question or the complicated question without satisfactory solution. Concerning the definition of negative crime,scholar in our country Xuchenglei thinks people who have the obligation to take on preventing the consequence of damage do not carry out the obligation for preventing, which constitutes the crime in the form of action. As punishing offense of nontypical omission, it meets whether proof of punishment conflicts offense penal code's settling a principle or not. During the development of history, modal thought of legal state turns to substantial thought of legal state, and modal offense penal thoughts turns to substantial offense penal thoughts as well. When we are analyzing offense penal code's settling principle, the most important is that we should take into account forbidding principle of analogy and principle of clarity. But from the offense penal code's settling creed, punishment of offense of nontypical omission can not escape from suspicion of offense penal code's settling creed. Then there is a variety of theories to reconcile the contradiction between them. Opening conditions of scholars like LIU Yan indicate that offense of non typical omission is an open constituent element. The clarity of criminal specific composition needs the explanation of judges by the intention and logic of criminal law. However, this doctrine of civil law is suitable for determining the three elements that constitute the crime. But when used in China's Criminal Law, it does not fit the constituent elements China's Criminal Law stipulates. Equivalence theory is also based upon the construction of crime, the criterion of criminal law is divided into forbidding criterion and ordering criterion, at the meantime, punishment of offense of nontypical omission results from the equivalence between damage of offense of nontypical omission and positive crime. When equalized, there is the proof of punishment, which mainly compensates the gap constituted by the crime between offense of nontypical omission and positive crime, and it is worth referring.At first I have got the idea of offense of non typical omission that different points of view of different theories, each wonderful views of the collision made my position swing. After I understand it thoroughly, I evaluate the theory of offense of non typical omission, and finally I chose the advantages of the open structure and the equivalent form of crime, and implanted in our criminal law, got some specific ideas. I agree that offense of non typical omission is an open type of the crime, the doctrine of equivalents point to shortcomings in the legislative regulation, so the punishment is not really analogy the forbidding of criminal law. Finally, in sentencing, I think the punishment of offense of non typical omission can be reduced, and explicit provisions of Section II of Chapter II.