Study On Act Duty As In Offense Of Non-typical Omission

The duty to act in offense of non-topical omission is an old proposition to the theory of criminal law. But the old isn’t representative backward, the theory of criminal law in different country put forward new ideas on this proposition constantly, and the dispute on it has never been stopping. Meanwhile, combine the theory with practice, the judgments about offense of non-topical omission in the judicial practice of our country which appears some problems. Nevertheless, the disputes on theory should be explained, and the problems in judicial practice should be solved. Based on this, this paper is divided into four parts. The first part advances the confusions in the theory and the problems in the practice. By elaborating the basis and specific types of the duty to act in the second and third part, and try to resolve the confusions and problems in the fourth part. Details are as follows:PartⅠ: By reviewing the development history of the theory of duty to act and the gleichstellungs problem, introduce questions that what’s the relationship among “the duty to act”, “the gleichstellungs problem” and the “principle of legality”? what’s the substantial basis of the duty to act? and what’s the relationship between the formal theory and the substantial theory? By sorting out the 55 relevant judgments in judicial practice, arise questions that how to reasonably limit the new duty to act emerging in judicial practice? and how to ensure judgments decided by different court facing the similar facts are consistent?PartⅡ: On the basis of discussing the reality and how to deal with it, concluding that “the more effective to protect the legal interest” and “the requirement of guarding the liberty of people ”; “Control” is a ability which means a man more likely to take measures to protect the legal interest because he has advantages on mastering more comprehensive information, etc; “The specific types of duty to act” is “ The action to allocate the duty to act” and “The prior conduct”.PartⅢ: This part gives more details about “The action to allocate the duty to act” and “The prior conduct”. “The action to allocate the duty to act” contains “The protect duty which allocated by society” and “The protect duty allocated by individual”, the former means the content of duty formulated by law, including: the duty to act among relatives, the duty which depend on the job in the protect duty which allocated by society and the regulatory duty on the third person’s criminal behavior which in the protect duty which allocated by society. The latter includes: the duty which generated from legal action, the duty which depend on the job in the protect duty allocated by individual, undertaking the duty of one’s own free will and the regulatory duty on the third person’s criminal behavior which in the protect duty allocated by individual. The prior conduct contains offenses, offenses with justificatory defenses and the regulatory duty on the dangerous objects,etc.Part Ⅳ : The main content of this part are answers to the above-mentioned problems, such as the gleichstellungs problem and the substantial basis of the duty to act are two words for the same thing, its typological manifestation is the duty to act which also named the formal duty to act. The gleichstellungs problem has been integrated into the duty to act, their relationship is not independent of each other nor against each other. Therefore, the gleichstellungs problem isn’t a specific problem but an explanatory problem of the specific provision, etc.In addition, the theory of the duty to act has influences on the basic ideas of criminal law, the whole criminal law system, the method to study criminal law and the judge’s decision in the judicial practice.