Research On The Conviction Of The Nontypical Crime Of Omission

Comparing with the typical crime of omission,we are weak in the theory of research onthe conviction of the nontypical crime of omission theory,there is no explicit provision in theexisting criminal law.Although there are serval jurisprudences in judicial practice about thenontypical crime of omission,it’s due to the lacking of effective guidance of the theory andlegislation,which often lead to questions on the departure from the principal of prescribedpunishment.In this case,the problem how to convict the nontypical crime of omission,hasbecome a major problem in our judicial practice.In this paper,I’d like to study the convictionof the nontypical crime of omission systematically,analyze the problems deeply.On the basisof drawing on the useful experiences of different countries,I make out several remedialmeasures to respond to the requirements of judicial practice.The paper is divided into threeparts:Part one,I mainly argue two basis issues closely related to the conviction of thenontypical crime of omission.First of all,I analyze its relationship with the principal ofprescribed punishment specifically,then I come up with my basis stance:To convict andpunish the nontypical crime of omission, it just violate the principle of explicitness but not theprinciple of prohibition of analogy.After that,I argue the reasons of conviction andpunishment in theories and practices about the nontypical crime of omission.According to therelated theories,I argue the reasons from two aspects——the function of criminal law and thebasic structure of crime.Part two,I argue the dilemma in conviction of the nontypical crime of omission inpractice deeply,summarizing the reasons of the dilemma:On the one hand,it is the judicialofficials who always convict of the nontypical crime of omission with the form of obligationsas guide;on the other hand,it is the lacking of legislation.Then I think about the reasons of thedilemma carefully,I come up with a conclusion that we should insist in the theory of theform and substance act obligations as a unified guide.Attention to the act obligation and thecausal relationship which effect the conviction of the nontypical crime of omission.At thesame time,we should improve the provisions in the People’s Republic of China’s code ofcriminal law.Part three,on the basis of the second part,I think we could remedy the dilemma of theconviction of the nontypical crime of omission from the legislation and judicial practice.In legislation,I draw on legislation from other countries and our domestic related theories andjudicial practice,finally I confirm the form and contents of legislation of the nontypical crimeof omission.I suggest that we should add the general principles to the nontypical crime ofomission in the general rules in the code of criminal law,and add the crime of abandonment ofresponsible protector to the sub-rule.In judicial practice,it’s mainly to strengthen the trainingof judicial officials about the theory of the nontypical crime of omission, transform theirconcepts and enrich their experiences in handing with cases of the nontypical crime ofomission.