The Criminal Law Analysis Of Li Moumou’s Intentional Homicide

Our criminal law system usually is consisted of two kinds of crimes which are action crime and omission.For the action crime, it is given a clear provision in the law. For the omission, generally including the typical omission and the non-typical omission. Due to the clearly provision of the typical omission in the criminal law,the crime of abandonment is a good example,so there exists little issues about the source of obligation and elements of crime constitution in the judicial practice. Therefore, this article will not discuss the typical omission. Hereinafter mainly refer to the non-typical omission, because the non-typical omission is not given clearly in the law. so far, scholars have given different opinions and understandings toward the research area of non-typical omission. How many kinds of the sources of the obligations of non-typical omission? And how to understand the substantial obligation of criminal omission? If we can combine the substantial obligation and the formal obligation? All these questions are need to be defined clearly by criminal law in the future. Moreover, what kind of standards should we set for the causality of the criminal omission? How to make a judgment of the criminal offender’s subjective of mind? To solve all these questions are matter to the judicial decisions in our life.In this paper, a classic case is introduced and analyzed. The basic structure is that: Firstly, a introduction of the case. Secondly,a summary and comparative analysis of the similarity cases, in this way the controversial issues are appeared and then the issues are analyzed one by one according to the theory of criminal law. Finally, the conclusions are given. This paper is consisted of four chapters, as follows:Part one: this chapter mainly introduce the case and the disputes hold by each party in the court trial and then summarize some similarity cases. By the compare among the cases, four questions are raised, this paper is guided by these four questions, because the other chapters are all around these four questions. with these four questions, a series of analysis and arguments are made. Meanwhile, through these questions, the reader can get a overall impression of the paper.Part two: the obligation of the omission is first introduced in this chapter, because the obligation is recognized the core elements of the omission and the basis for shoulder the responsibilities, this introduce is made through two aspects. These two aspects are the establishment of conditions and concept of obligation; Secondly, the substantive and formal obligation of both foreign and china is summarized and analyzed, the conclusion in this paper is that the formal and substantive should be untied together, in this way the omission can be recognized easily. Meanwhile, several theories about the causality are also introduced.Part three: the legal analysis of this case is given in this paper, it is also the core part of this paper. The questions raised in the first chapter are analyzed based on the theories of the “formal theory” 、“the substantial theory” and “the omission causality”. Therefore, the four disputes can be solved, and the conclusions are that the defendant has the duty to rescue his wife, such kind of duty belong to the legal duty, the duty caused by the previous act is not existed, the defendant hold the indirect intent about his wife’s death, and the causality is not existed between the defendant’s no-action and his wife’s death.Part four: this chapter is a summary of the above chapters. Firstly, for the court decision in the case,three special conditions of the omission intentional homicide is mentioned, these three conditions can be regard as the criteria of the establishment of omission intentional homicide, meanwhile, a schematic diagram is made referring to how to judge the similarity cases. Secondly,several opinions are given aimed at the legalization of the non-typical omission advocated by several scholars, for example, how to evaluate this legislation proposals and if it is practical in the judicial practice, Moreover, the formal and substantial obligation can untied together, it will help make the recognition of omission more reasonable; Finally the omission is not against the legal principle of the crime and punishment, we should understand it from the substantive aspects.