Research On Offense Of Non-typical Omission

There is no doubt that behavior is the core and link of criminal law theory research, for it dom inates the crime objective perf ormance, produced by person’ s illegal subjective intention, causing harmful consequences which finally in turn get negative evaluation and punishment from criminal law. What corresponding to these, is that the behavior theory to study is becoming more and m ore complex and dif ficult. Regardless of the difficulty of studying body movement itself, the rapid development of social and economic life which produced much behavior diversity and differences, greatly increasing the hardship of the structu ral research of the behavior. As the “edge” of behavior classifi cation, Non-typical Om ission is much harder to be cognized. The obligation of Non-typical Om ission Crime is not originated from criminal law provisions while Gennuine Om ission Crimes is. It im plemented in the form of inaction which should be composed of action crime. As its concept which has the dual characteristic of both action crim e and crim inal omission, the research of Non-typical Omission is one of the m ost difficult parts in crim inal law studying, regarding the behavioral research, judgi ng causation, and as a comm itted with the standard of equivalence. And stand on a di fferent position also can m ake a different understanding of Non-typical Om ission Crimes, which also derived num erous and complicated theories in our country and abroad. These debates can make super effects to the judgment of crime, the crime in judicial practice and the weight of punishm ent in another way.In the view of above consideration, the author summarized five typical Non-typical Omission problems, adhering to the principl e of comparative study and draw lessons from domestic and foreign advanced crim inal law theory, and combinative the basis of judicial practice in our country. Through detailed analysis and ar gumentation, the author hopes to make more or less contribu tion to the Non-typical Om ission judicial research in China.First issue is to figure out both co nnotative definition and extensive definition of Non-typical Omission. Whether in Germ any or Japan, the scholar s fail to have a comprehensive argument although they tr ied to think both sides. W ith the understanding of the practical legal exercise in China, the author concluded that Non-typical Omission refers to that people who is under the obligation to perform, has the ability to do but fails to do, whi ch conduct action crim es, is liable of that crim e. Based on this theory, the author clarified the scope of Non-typical Om ission Crimes by excluding “typical action crim es”, which ne ed to be finished either in physical movement or active evaluation, and also adm it the appearance of behavioral crim e in Non-typical Omission Crimes. After that, the author generally distinguish Non-typical Omission from Gennuine Om ission Crimes from the aspect of dif ferent obligation origins, varies obligation included and opposite natures of crime.Secondly, the author talks about the re lationship between Non-typical Om ission and the principle of legally prescribed punishment for a specified crim e under the premise of admitting a flexible definition of the principle. In the support of the theory of Garantenlehre and Non-typical Om ission’s “Double Identity”--violate both prohibitive norm and commanding norm, the author ar gued that Non-typical Omission is in harm ony with the principle of legally pr escribed punishment through both normative structure and theoretical structure. As for the limitation of Non-typical Omission’s understanding, the au thor used the definitude principle argued that the standard should be foreseeable to any normal person’s understanding of the law.Then, the author mainly talked about the problems about the equivalence between Non-typical Omission and the relative action crime. Non-typical Omission crime, as a crime violated the prov ision of action crim e, it is bas ic rule to f ulfill the sam e outcome as the relevant action crime would make. In the analysis of subjective theory, objective theory and compromise theory, the author synthesized both subjective and objective ideas, m ixed with the practical ex ercise of China, pr oposed a substantial evaluation of Non-typical Om ission, works with the for mal evaluation—the constitutive elements of crimes.The forth issue mainly focus the obligation of Non-typical Omission. Starting from the form and essence of the Non-typical Om ission obligation, com bined with the obligation of our country, that is, the law, contract, advance behavior, post business behavior level. As well as the degree of the essence of the exclusive level, proposed should carry out on the basis of the principle of legality and equivalence principle, Non-typical Omission is should be carried out in two levels of recognition.The last part summarized the causal relati onship between behavior and ef fect in Non-typical Omission. The author em barks from the af firmation of t he causality, clarify its f our basic charac teristics of existence, and th en on the af firmation of condition theory demonstrate the specific judgment method of Non-typical Omission analysis, that is assume what the people will do under that obligation, what outcomes will not happened. But this should also based on the understand ing of individual situation of different cases.