On Sources Of Act Duty As In Offense Of Non-typical Omission

Offense of non-typical omission is a crime of which the types are not clearly defined the types by Criminal Law. From the19th century, scholars started to pay attention and extensive discussion to the issues related to offense of non-typical omission. However, until today, offense of non-typical omission is still one of the contentious issues in the study of Criminal Law. Act duty, as a core element of offense of non-typical omission, directly determines the conditions of offense of non-typical omission and the basis of punishment. Therefore, defining a reasonable range of the resources of act duty is beneficial to the protection of both human rights and social order. On the basis of the study on the theory of the resources of act duty, this paper puts forward a new opinion that the incentives of offense of non-typical omission should be the entry point of the research on the resources of act duty.This paper is mainly divided into four parts:in the first part, the concept of act duty of offense of non-typical omission is clarified. Firstly, by means of analysing the difference between non-typical omission and positive crimes, the author elaborates the origin of the concept of the non-typical omission. Secondly, on the basis of showing various concepts at home and abroad, act duty is defined as a kind of duty that requires someone to take some positive measures to prevent damages from ocurring. Act duties are legal obligations, including no moral obligations. Thirdly, according to discussing the causation of act duty and offense of non-typical omission, the author get a conclusion that act duty must be brought into and as a key factor of the theory of offense of non-typical omission.The second part, the author introduces various theories of the Sources of act duty in Germany and Japan. Especially introduce and comment the formal sources and substantial sources of act duties.The third part, the author introduce and comment the point of scholars in Taiwan and mainland China. Our scholars innovative the theory based on learning the theory in Germany and Japan. By comparing the theories home and abroad, the author find that it has a weakening trend for formal sources of act duties and there are four paths to define the substantial sources of act duties.The forth part, the authors puts forward her point of view. This part is the Core part of this paper. To define the sources of act duty, the path is from this starting of causation. According to the different incentives, the sources of act duty include prior act、The dangerous prior act of Cooperation and the dependently protected relationship between the legal interest and the perpetrator.The last part, according to the theories, punishment on offense of non-typical omission does not contradict with clearness demanded by principle of legality. Then, the author puts forward that act duty as in offense of non-typical omission must be legalized, the legalization includes legislative legalization and judicial legalization.