Judicial Determination Of Causation Of Offense Of Non-typical Omission

It is well known that act and omission are two basic form of crime. They are thebasis of a criminal offense. Act is the most common form of crime and omission is aspecial form of crime. Omission is relative to act. It means that the actor bears aparticular legal obligation to implement some kind of positive behavior, and he canimplement but don’t implement. Offense of omission is divided into standardomission offense and offense of non-typical omission. Standard omission offense isimplanted only by act. But offense of non-typical omission is implanted not only byact, but also by omission. Visible, as opposed to standard omission, the criminalpattern of offense of non-typical omission is more complex. China’s traditionaltheory of criminal law has a more complete theoretical system of standard omissionoffense. But refers to offense of non-typical omission, there is no provision in theGeneral principles, and in the specifics also can’t see similar provisions. So thetheoretical construction about the offense of non-typical omission is a weak link inour criminal law theory. Especial in the situation of common occurrence of offenseof non-typical omission cases in the current practice of our criminal law, the study ofthe offense of non-typical omission is particularly necessary.In judicial practice, in order to do conviction and sentencing on offense ofnon-typical omission, we must begin with studying in causality in offense ofnon-typical omission. Because only by proper determining causality in offense ofnon-typical omission the conviction and sentencing, can we do proper convictionand sentencing. So this article aims to study in the judicial determination ofcausation of non-typical omission offence.In addition to the introduction, the paper is divided into four parts:In the first part, the author described the debates about causation in non-typicalomission offense in the criminal theories, which is the basic of studying thecausation. First theories of causality in offense of non-typical omission areintroduced, that is varies theories about offense of non-typical omission in and abroad. They all includes affirmative and negative. The author introduced andevaluated these doctrines one by one, analyzed their proper place and defect. On thebasis of these, the author presented his views: causality in offense of non-typicalomission is really existed. And “doctrine of violating conduct obligation” and“doctrine of prevention results” should be combined.In the second part, the author proposed in the study of non-typical omissioncausality, although the debates should be used as research base, we shouldn’t beconfined to various theories. We should break through them to find new ways andmethods and review them from a macro. This introduces factual causation and legalcausation. The author believed the fact that in factual causality we must adhere to thebasic point of dialectical materialism. That is omission in offense of non-typicalomission is existed objectively. Causality between omission and result is existedobjectively too. Legal causality which is value judgments about the causalrelationship, is also the basis for criminal liability. The author proposed that thereexit legal "behavior" and legal reason in omission.Thirdly, in the basis for determining the existence of offense of non-typicalomission as the basis, features of causality is introduced, including relevance ofobligations, non-specific nature of casual force, dependence and invisibility.Relevance of obligations means that the establishment in causality in offense ofnon-typical omission must be as obligations as a precondition. Non-specific natureof casual force means that in the process of causality, the causal chain of omissionand harmful consequence is not parallel which cause non-specific nature of casualforce. Dependence is to say causality’ occurred is dependent upon the causalitywhich has been existed. And dependence is not equivalent to indirect. Invisibilitymeans that omission performance relative motionless in appearance.The fourth part is the core part of the paper. The author elaborated the judicialdetermination of causality in offense of non-typical omission. It also is requires ofthe practice of justice. First three main theory of causality in offense of non-typicalomission are introduced: condition theory, the causal theory and the equivalenttheory. The second section describes the author’s point of view: We should takefactual causation as the basis and then explore them in legal, then take condition theory to identify the causality in offense of non-typical omission, that is to say:“No A then no B.” Its application in causality in offense of non-typical omission is:actor has specific duty of act, and there is the possibility to prevent the occurrence ofharmful results, then we can identify their causality. Finally, a few comments areproposed to do specific judgments about the causality in the case.