Study On Act Duty Of Non-typical Omission Offense

Non-typical omission is a crime not expressly provided in criminal law, but it iscommon in reality. Early in nineteenth century, German scholars began to studynon-typical omission. Since then, it has been a widely debated topic in criminal law studyfor two centuries. As the premise and foundation of non-typical omission, act duty decidesits establishment condition and punishment means. Reasonable definition of act duty isconductive to coordinate and play the legal right protection function and freedomprotection function of the criminal law, and is beneficial to promote the criminal lawtheory development and judicial practice progress as well.The thesis firstly defines the act duty of non-typical omission as a basis, and thenrefers to the act duty theory of Germany and Japan, so as to study and investigate the actduty of non-typical omission offense with the combination of China’s theory and judicialpractice. The thesis is divided into four parts:The first section is an overview of the act duty of non-typical omission. It introducesnon-typical omission concept, discusses the relationship between non-typical omissionand the principle of statutory crime and penalty, defines the act duty of non-typicalomission, and analyzes the position of the act duty of non-typical omission in criminalsystem.The second section investigates and refers to the act duty theory in German and Japan.The act duty theory of German and Japan experienced an evolution process, from formalact duty theory to substantial act duty theory, and then to the combination of formal andsubstantial act duty theory. We should learn from them the dual act duty theory whichcombines formal act duty theory and substantial act duty theory.The third section investigates the judicial challenges of China’s act duty commontheory. After studying the formation and content of China’s act duty common theory, thethesis discusses and responds the meaning and judicial challenges of the duty expressly provided in law, the duty required by post and business, the duty caused by legal act andthe duty caused by antecedent act.The fourth section presents the suggestions for improving our act duty theory.Improving our act duty theory, we need to dig the connotation of act duty sources of ourcountry, expand formal sources, develop substantial sources of act duty, and finally form anact duty theory that combines formal act duty theory and substantial act duty theory.