On The Research And Determination Of Criminal Omission Participation In Joint Criminal

The distinction between perpetrator and accomplice of criminal omission is not as the basis for omission participation, also has been the focus of German and Japanese criminal law. About the limit of two, foreign criminal scholars put forward the subjective theory, the behavior control theory, the obligation offense theory and other theories, and on the basis of this has formed the principal offender doctrine, the accessory offender doctrine and the compromise doctrine. However, the principal offender doctrine and the accessory offender doctrine put the question to the two extremes, the reason is that the two theories attach too much focus on the structural difference of the omission and commission, ignoring the essential elements of obligation in omission. Attempting to apply commission of the common crime theory into omission in joint offence is destined to be failure.Further analysis on the criminal law of Germany and Japan found that, the distinction of commission and omission is just as crime form, and the root lies in the penalty basis behind the form of distinction between perpetrator and accomplice. The obligation offense theory in Germany proposal the principal dualism of dominated crime and obligation offense. The dominant crime penalty is based on negative obligation, and the obligation offense is the corresponding positive obligations, accordingly this, the distinguish types of the omission and commission is replaced by dominated offense and obligation offense. The author believe, this provides a new way of thinking about the solution of omission participation in criminal justice for our country:we should determine obligations types in the common crime, if the omission actor bear negative obligation, his omission belongs to the category of dominated crime that according to crime control principle to judge whether the perpetrator or accomplice; if the omission actor bear positive obligations, his omission belongs to the obligation offense that it would only be principals in the common crime.In addition to the introduction and conclusion, this article is divided into four chapters: the first chapter introduces the basic issues involved in the omission, including the concept and the probability of omission participation; the second chapter is involved in the identification of the omission participation, combined with case to analysis foreign omission participation theory; the third chapter puts forward the views of this article:advocates Jakobs’obligation offense theory to solve omission participation problems; the fourth chapter reviews the theory of obligation offense in our criminal law and practical applicability.