Study On The Equivalence Of Non-typical Omission

The equal-value of non-typical omission, is the problem whether non-standard omission and action crime can make the same crime, or how to use the same component elements of a crime to make the same comment to non-standard omission and action crime. Equivalence problem take up dominant status in the study of non-standard omission theory, clarifying the basic theory of equivalence, clearing the judgment standard, for limiting the scope of the establishment of non-standard omission, and studying non-standard omission theory are of great significance.Equivalence study is of great importance, but in the theory of criminal law in our country, the importance of equal-value doesn’t gain attention of academic circles due itself, there is little monograph to study equivalence problem, the discuss of equal-value are almost the same, without comb system, therefore, the author selected equivalence as my graduation thesis’ title, combing the current equivalence theory, in order that the scholars who want to study equivalence can obtain a more intuitive feeling of equal-value.This text mainly use historical research, comparative research, case analysis method to introduce the development of equivalence, compare and analyze equivalence theory of domestic and overseas, analyze and discuss the case in the judicial practice, strive to make a complete illustration of equivalence theory. Equivalence produced from solving the conflict between the punishment of non-typical omission and the principle of legality. The essence of equal-value is the equivalence of action, the judgment of equivalence should be proceed in the stratum of constitutive requirement. About the criteria of equivalence, foreign scholars’ viewpoint can be summarized as: subjective theory, objective theory, comprehensive theory. Subjective theory can be divided into: the intention to hostile the law and the intention to positive utilization. Objective theory can be divided into: the limitation to the duty of action and the setting of dangerous source. Domestic scholars’ viewpoint can be divided into: seeking the criterion of equivalence in the duty of action and out of the duty of action. Specific criterion mainly is: theory of dominance, theory of inspecting in two levels, the theory of earlier action, the theory to ensure the criterion separately,the theory of comprehensive judgment and so on. The author thinks that the judgment of equivalence should be proceed out of the duty of action, and having the duty of action is the precondition of equivalence judgment. Equivalence judgment should adopt the real dominant standard, that is, after doer’s action constitute omission, only when the person who have the duty to act have realist dominant to the occur of violation results, negative act and deed have equivalence, and can adopt the crime constitution which is usually formed by deed. When judging the real dominant, according to the difference reason result to aggressive results, can be make a distinguish among the reason of non-action person, victim, the third party, natural disaster to make a specific judgment of the real dominant.About the application of equivalence in judicial practice, the author lists several real cases, and analyzes to them, to prove equivalence has the necessity and feasibility in the judicial practice, and it should be fully applied in the judicial practice.