| The origin of the act obligation about the criminal omission is a controversialproblem in the field of the criminal omission theory research. Especially, whethermoral obligations can be as the creation of the act obligations still is a puzzlingproblem. Under the influence of Germany and Japanese compulsory nature research, themainland law system nations have a trend of looking the moral obligation as the originof the act obligation about the criminal omission. The origin of the act obligationabout the criminal omission was not regulated clearly in the past in our country.Generally,"four sources said" is used on this point in the theory research. But injudicial practice, the virtual action obligation said was applied to deal with thecase of non-salvation-in-danger. So, most of them considered that the moralobligations can be seen as the obligation origin of the criminal omission. It causesto think about whether the moral obligation can be seen as the origin of the actobligation about the criminal omission in academic circles.Based on the case of “taxi driver left the wounded killed”, in the perspectiveof whether do onlookers have a assistance obligations, using the existing actobligation theory, from the view of "form of obligation said" and " virtual actionobligation said", this thesis demonstrated whether did the taxi driver Zhang have aobligation to rescue the injured or not, and then further demonstrated that the generalassistant obligation cannot be seen as the source of the act obligation. So, it isimpossible that the behavior of non-salvation-in-danger is considered to convict. The aim of this thesis is to seek a new path analysis for the judicial practice in thedifficult complex cases of non-salvation-in-danger, which make the result of case morefair and justice.This thesis is organized as follows: in the first chapter, the problem was putforward; in the second chapter, the origin of act obligation about criminal omissionwas introduced; in the third chapter, the legal analysis of the case dispute wasprovided; in the fourth chapter, the reasons of the behavior ofnon-salvation-in-danger to be unconvicted was discussed.In the chapter1, the case about “the taxi driver left the wounded killed” wasbrought out. Firstly, the details of the case were introduced. Then the author statewhether the perpetrators Wang and taxi driver Zhang constitutes a crime or not andthe reason of constituting crime. Moreover, according to the different points, theauthor summarized the focus of the dispute is whether the taxi driver Zhang toconstitute a crime or not. If make crime, what kind of punishment they will receive.In the chapter2, the author firstly demonstrated what kind of role was the actobligation in the research of criminal omission. As a result, the source of the actobligation was the premise of no-action crime; Secondly, the author analyzed theresearch status of the form and virtual source of act obligation of criminal omissionin details. The author concluded that the source of obligations should be the unityform of the form and virtual source.The chapter3is based on the chapter2. From the view of the latitudinarian actionduty and virtual action obligation said, the author analyzed that the debate of thecase whether taxi driver Zhang constituted a crime or not, and what kind of crime theywill received, and concluded that Zhang did not constitute a crime because there isno obligation to help.The chapter4demonstrated that the behavior of non-salvation-in-danger to beunconvicted, mainly from the view of the onlookers no assistance obligation and moralobligations not the source of the action obligation. Firstly, according to thecharacteristics of the secondary crime, summarized the research results on this point, the author concluded that our country laws did not have the general rescue obligation.Then, from the point of boundaries of morality and law, uncertainty of moral and themodesty of criminal law et al., the author gave the reason that the moral obligationcould not be seen as act obligation. |
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