Research On Why Eine Enge Gemeinschaftsbeziehungen Should Be The Source Of Obligations In Omission Offences

Eugen Ehrlich once said:” whether it is now or in any other era, development of the law never focuses on legislation, legal science or judicial judgments, but on society itself. ” In the 1930 s, with the merging of Western law and Sociology, eine enge Gemeinschaftsbeziehungen came to the fore from doctrines of substantive obligations and became a new type of sources of obligations to act in omission offences in many continental countries’ and regions’ criminal laws, which provided a strong theoretical foundation for these people’ omission crimes. However nowadays, omission offences committed by members of close community have emerged in China along with the restructuring and developing of Chinese society, so many criminal scholars begin calling for introducing the theory of eine enge Gemeinschaftsbeziehungen. But, the criminal theory and practice circles cannot agree on whether eine enge Gemeinschaftsbeziehungen can be the source of obligations to act in the criminal law. Based on this, the dissertation will carry on the research about the theory of the eine enge Gemeinschaftsbeziehungen in hope of making reasonable decisions in the judicial practice.In addition to the introduction, the dissertation is composed of five parts. There are over 34,000 words.The first part is about the outline of eine enge Gemeinschaftsbeziehungen. Firstly, the author parses out the meaning of “Gemeinschaft(or community)” in the criminal law system through a comprehensive study of the word “community” in etymology and sociology, on which defines what constitutes an eine enge Gemeinschaftsbeziehungen. Secondly, the author makes three different classifications in the light of different standards, that is, the established time, kinship ties and legal protection.The second part is about the substantive jurisprudential basis of why eine enge Gemeinschaftsbeziehungen can be the source of obligations in omission offence. To start with, it introduces various substantive jurisprudential doctrines of German, Japan and Taiwan of China, such as “Functional Dualistic Doctrine”, “Trust Relationship Doctrine”, “Dangerous Former Behavior Doctrine”, and “Open and Close Relation ship Doctrine” and etc. Second, the author puts forward his own opinion supporting the doctrine of trust relationship.The third part is about the necessity and feasibility of introducing the theory of eine enge Gemeinschaftsbeziehungen. Firstly, it introduces and assesses related academic controversial views and then illustrates the necessity of introducing this theory from the lagging of the traditional doctrine of sources of obligation, the social harm and the criminal function of protecting the society. Secondly, based on this, the author discusses the feasibility of the introduction of it from five aspects that is, the jurisprudential basis, the sense of the word, the elements of constituting an omission crime, the way of fulfilling obligations and the extraterritorial approaches.The fourth part is the specific design of the application of the theory of eine enge Gemeinschaftsbeziehungen. In this part, the author makes a sophisticated design for the application of the theory from five regards, including inspecting the intimate degree of the community decently, limiting the scope of crime confirmation strictly, narrowing the scope of guarantors appropriately, letting minors only responsible for serious crimes and determining obligations reasonably, in order to help identify the close community members’ omission offences accurately in judicial practice.The fifth part is some recommendations for the improvement of the doctrine of sources of obligations in omission crimes. For now, among the related doctrines, “Substantive Obligations Doctrine” and “Hybrid Obligations Doctrine” both have undesirable places, which could either result in judicial injustice or judicial resources waste. Thus, this paper argues that we should amend the “Formal Obligations Doctrine”, add a new type of sources “Eine Enge Gemeinschaftsbeziehungen” to make up for the disadvantages of the formal obligations doctrine. Under the current social circumstances, I believe this is a best way to balance judicial justice and efficiency.