The Research On The Theory Of Guarantor Status

The offense of nontypical omission problem has always been a difficult problem incriminal law theory, the omission theory development has made nearly two centuries, butalmost every problem which in theory all have more or less differences as a source ofobligations, the problem is even more so.Guarantor status is used to illustrate the theory as an obligation, as a punishment ofoffense of nontypical omission basis. In order to ensure that as status and equivalence ofomission, then explained the omission of penalty, from the Nagler proposed in1938that said,said that, the omission of whether the actor has the obligation, the key depends on whether theperpetrator with guaranteed the position, only has the status of Guarantor are to guaranteeobligations when they fail to comply with, thus the occurrence of harmful results occasion,will appear as the problem."That person says" on omission perfect crime theory system playsan important role in Germany, Japan and other countries, the relevant legislation of offense ofnontypical omission is based. China’s criminal law theory has long paid attention to theresearch source of duty scope is not as, while less attention as the substantial basis of duty. Interms of legislation, lawmakers have neither the omission crime provided in general terms andconditions of the general principles of criminal law, there is no penalty individual omission ofspecific provisions made in criminal law. In the theory of criminal law, very few textbooksmention guarantor status theory, is more a list form as the obligation, the judicial practice ofnot as a way for the implementation of violating the prohibitive norm behavior made theguilty verdict,because of the lack of legal support, and were called "moral victory over thelaw results". Therefore, research status of guarantor theory can further promote China’sdevelopment of the theory of omission committed, to provide some beneficial enlightenmentto our country legislation.The full text is divided into three parts except introduction and conclusion, mainly fromthe connotation, ensure the status and the development of the theory of its application arediscussed.The first part is the summary of status guarantee theory ", mainly analyzes the status ofguarantor" the meaning of the word, and the article introduces the background, the development status as the obligation theory are summarized carding, analysis of the"obligation" one word and "guarantee relationship status" of the word, to ensure the types andcharacteristics of extraction, refinement for the following discussion under the bedding.The second part is the guarantee of substantive movement position theory, firstmentioned above "that people say" analysis of the sequence of events, and a comprehensiveoverview of development of human essence theory guarantee world results, and on this basisto ensure the summary review status substantial movement, see its progress at the same time,point out its existing the development process of the theory of defects.The third part is the focus of this thesis, is about the status of guarantor theory in theexploration of our country suitable guarantor status, although the theory has been mature insome countries, but also should be aware of some of its shortcomings, and shall indicate theour country applies some rejection caused by soil does not suit. The interpretation anddevelopment of new is the first to solve application before, in theory a basic analysis on therefinement of its type,through some cases to achieve the guarantee to comprehensively graspthe types, the application in our country present legislation and theory development direction.