Research On Punishment Basis And Punishment Scope Of Offense Of Nontypical Omission

The theoretical study on offense of nontypical omission is still the important theoretical questions to understand crimes of omission. Its characteristic is not as a means to realize usually by as the form of crime, that is to say though in the existing structure it is offense of omission, but for penalty, it is the same contribution with as a crime, which generates complex theoretical problem. That’s because, in criminal laws’theory, except for examples that are clearly defined by the provisions of the criminal law, we should think the content of criminal law is to prohibit harm through positive measures. On the criminal behavior’s level, the provisions of the criminal law is to prohibit rules, and positive actions are normal for crime, but negative actions are not included in this category. Meanwhile, the range for truly negative crimes is not defined in criminal laws’provision. According to the particularity of the crime by omission, how to realize punishment to it in judicial practice in fulfilling doctrine of a legally prescribed punishment for a specified crime and criminal range based on the particularity of negative crimes become questions that is worth researching. Although after nearly two hundred years of discussing, and no agreement has been reached. Therefore, how to coordinate guilty of crime and punishable basis and the range of its punishment in the offense nontypical omission is a emergency problem of justice practice to be resolved promptly. The author thinks that in our country’s existing criminal law system, it’s the key to solve the above problems to analyze and identify the punishment basis and punishment scope.In China, the research of criminal law theory is mainly focused on the occurring basis of action duties, regarding acting duties as the condition and foundation of the judgment of offense of nontypical omission. The author also admits the importance of the research on the action duties occurring basis, which means that defining people having action duties to avoid damaging results is the basis elements of offense of nontypical omission, and the breach of the obligation is the inherent reason to punish offense of nontypical omission. Besides the source of action duties, scholars proposed equivalent question toward the punishable basis and the range of its punishment in the offense nontypical omission, which is vital to dealing with the jurisprudence problem of offense of nontypical omission punishment and defining the punishment range. Thus in essence, two targets of the research of offense of nontypical omission are defining the scope of duties source and judging standards of equivalent question.The paper begins with the relationship between the punishment of offense of nontypical omission and the doctrine of a legally prescribed punishment for a specified crime, putting forward the theoretical questions which existing in the punishment of offense of nontypical omission from the perspective of ontological and normative theory, then discusses respectively through two important derived principals of the doctrine of a legally prescribed punishment for a specified crime, namely prohibition analogy to explain and clarity requirements, to draw the conclusion that the occurrence basis of action duties should be clarified to explain the punishment foundation of nontypical omission. In order to coordinate the relationship between the punishment of offense of nontypical omission and the doctrine of a legally prescribed punishment for a specified crime better, the author studies on the equivalent question of offense of nontypical omission and discusses in specific on the proposal of equivalence problem, the substance and theoretical status of equivalent question and the judgment criteria for such theory, which sets clear limits on the scope of offense of nontypical omission. Then through investigating the process of theory development in the Chinese mainland and Taiwan area and Foreign criminal theories concerning the source of action duty, the author refers to disadvantage formal source theory and substantial source theory through comparison. At last, by comprehensive consideration of action duties source of offense of nontypical omission, the author points out that we need to insist the combination of formal source and substantial source of offense of nontypical omission action duties, in order to define the duties source scope, as well as to make our judgment and punishment of offense of nontypical omission conform the doctrine of a legally prescribed punishment for a specified crime, eventually reaching the goal to protect the law interest and human rights under criminal law.