Research On The Source Of The Act Duty In Offence Of Non-typical Omission In China

In the criminal law of the world, research on the non-typical omission is a greatargument whether in the theory of criminal law or in the practice of criminal law. Inthe theory way, it’s a big problem how to deal with the gap between the punishmentof non-typical omission and the rationality of basis of the punishment. Meanwhile, inthe practice way, although many countries agree with the punishment of the specialkind of crime, many of them haven’t expressed the crime in their Criminal Law orwithout a general regulation. That’s make a big trouble when using themto solve areal question with a question that whether the punishment extent will enlarge or not.And the source of act dutyas the standard of the crime of non-typical omission isalso a big problem that people focus on. Two problems mentioned above have greatconnection with the act duty. Different countries have different regulations on thisproblem. The opinions in common law countries have divided this problem into2ways: the formal theory of act duty and the substantial theory of act duty, nowadvocating combining both of them. As far, scholars in the mainland of Chinagenerally agree with the Four Sources of the obligation mode: First, the regulationsexpressly provided in the law; Second, the obligations arised from the business issues;Third, the obligation arising from the legal acts; and the fourth, the obligation arisingfrom the former acts. There are some problems with the regulations. The crime ofnon-typical omission can be punished without a regulation in the Criminal Law ofChina. However, with great development of the economic environment, the currentregulation cannot follow the new issues. This essay is depended on the arguments intheory, drawbacks in legislation, frustrations in juridical practice, raising some plan tosolve these problems.There’s four parts in my essay, the first is definition of the obligation to thecrime of non-typical omission. We should know the definition of the obligation to actin the crime of non-typical omission and the meaning of the obligation to thenon-typical omission. The second part is the different opinions on the obligation, including the common opinion in China. The third is some arguments in the use of theregulations for deeper research. And the last is to tell the relationship between theobligation and the principle of legality. Meanwhile stand an opinion combining theformal theory of act duty and the substantial theory of act duty to balance therelevance with the principle of legality.