Study On The Sources Of Act Duty In The View Of The Principle Of A Legally Prescribed Punishment For A Specific Crime

With the development of the times, the principle develops from the AbsolutePrinciple of a Legally Prescribed Punishment for a Specific Crime to the RelativePrinciple of a Legally Prescribed Punishment for a Specific Crime. It’s connotationof the Principle has been deepened from the formal side to the substantial side, whichdemands that the criminal penalty should be set clearly and definitely and thepunishment for the right actions should be forbidden. Pseudo Omission Crime is thetypical representative of open constitutive elements, and the act duty as its premisesof foundation does not be described, so the judges need to actively find out to judgethe illegality of Negative Crime in the constitutive elements. However, if theoccurrence basis of act duty is ambiguous, it is difficult for the judges to judge actduty definitely, making it hard to illustrate the punishable nature of Pseudo OmissionCrime and to set a reasonable limit to the punishment of Pseudo Omission Crime.Therefore, it is necessary for us to illustrate the sources of act duty definitely to meetthe standard of definiteness and rationality of the Principle of a Legally PrescribedPunishment for a Specific Crime.There is a discussion on the sources of act duty in the scholars of criminal law athome and abroad, and they debate the formal, the substantial and the combination offormal and substantial sources of act duty. From the substantial side of the Principleof a Legally Prescribed Punishment for a Specific Crime, the theory of FormalSources of Act Duty can meet the need of definiteness, but it causes an unreasonablepunishment scope of Pseudo Omission Crime. Although the theory of SubstantialSources of Act Duty can find substantial and reasonable basis for the punishment toPseudo Omission Crime, it is hard to meet the standard of definiteness which makesthe nationals know if their behaviors will be punished for in some occasion easily justbecause of the abstractness in its standards of judgment. So, it goes against thePrinciple of a Legally Prescribed Punishment for a Specific Crime for us to interpretthe sources of act duty no matter from the formal side or from the substantial sidesimply.The theory of Formal Sources of Act Duty makes an unreasonable punishment scope of Pseudo Omission Crime, just because it explains the sources of act duty byway of listing from the formal side, instead of exploring the essential basis. In otherwords, the theory of Formal Sources of Act Duty has not set a substantial limit to theformal sources of act duty, which leads to the unreasonable expansion or reduce ofthe punishment scope of Pseudo Omission Crime. The scholars want to restrict thepunishment scope of Pseudo Omission Crime reasonably by the study of the theory ofSubstantial Sources of Act Duty, but the indeterminacy of the standards of judgmentresults in different comprehensions, leading to different punishment scopes of PseudoOmission Crime, and unreasonable comprehensions, leading to unreasonablepunishment scopes of Pseudo Omission Crime. Consequently, it is easy to discern aconnection between formal and substantial sources of act duty, that the latter provideinner probable causes for the former, and the former offers definite guarantee to therealization of the latter. Hence it is essential to combine the formal side with thesubstantial side if we want to ensure the definiteness and rationality of the Principleof a Legally Prescribed Punishment for a Specific Crime when interpreting thesources of act duty.