Research On Offense Of Non-typical Omission

The offense of nontypical omission research has always been difficult to study the theory of criminal law, standing at different positions are also different to the omission of interpretation, it is still necessary to make a further study on. With the increasing recognition of offense of nontypical omission cases in judicial practice in recent years, especially the judicial organs of China to intentional homicide investigation looks from ruin the form of responsibility, to explore the theoretical research on this problem is growing. In this paper, the basic problems of crime of omission as the research object, mainly for the behavior, not as the offense of nontypical omission constitutes, not as a duty and omission equivalence problems made of. This paper is divided into four parts:The first part, starting with two controversial cases, theoretical thinking through the discussion of the issue, to find out the offense of nontypical omission need to solve the problem, namely how to act is not as understanding, the crime of the impure omission offense, constructed and how the offense of nontypical omission obligation, omission is how to achieve equivalence problem.The second part, the crime of the impure omission definition. Not as a form as a harmful behavior, refers to the behavior of people have a specific legal obligation to implement some kind of positive behavior, and can implement without harm behavior performance. The reason is not as sexual acts, from the behavior itself, not as a violation of the criminal law to protect the legal interests or certain social relations; from the perspective of behavior subject, not as the embodiment of the behavior of the free will of human behavior, there are intentionally or negligently. Is not as pure basic distinguishes made, pointed out that the offense of nontypical omission is the criminal law does not require the guarantor and not as content, but not as the implementation of the behavior person usually as part of the implementation of the harmful results of crime. And further analysis, constitute the offense of nontypical omission in the objective must meet three conditions:the behavior has the implementation of specific legal obligation to some as; behavior person has the ability to perform specific legal obligation; behavior did not fulfill legal obligations as specified, occurrence of the harmful consequences.The third part, the crime of the impure omission obligation problem analyses. As the obligation as the core problems of crime of omission, in this paper as a basis on related theory of obligation source of formal source of duty to act as the real source of obligations, and put forward a as a source of obligations should be from the form and substance of combining view. Form originates mainly from the legal obligations, duties or obligations on business requirements, the duty caused by legal act, the obligation arising from antecedent actions and analysis of public order and good customs can be used as a source of obligations; the real source, summarizes and analyzes the real source theory, put forward from the foundation, has the protection law Yi is the protection of law needs, has exclusive dominance on the protection of legal interests, these three aspects to grasp the essence of the underlying obligation is not as.The fourth part, it mainly introduces and analyzes omission equivalence theory, that the equivalence theory as a judgment omission comprehensive guidance value theory made, need to consider to the main objective factors to achieve equivalence and not as as, defining the offense of nontypical omission of punishment, the protection of human rights and freedom.