On The Establishment Of Assistor By Omission In Criminal Law

Accomplice related issue has been the focus of academic discussion,the study of the crime of omission is the focus of academic debate.The upper concept of the crime of omission is the participation behavior of omission.Germany and Japan are more mature in the study of participation behavior of omission,and it has very important reference significance to our country.The exploration of those problems is relatively weak in our country,so the existing theory cannot guide the practice case correctly;at the same time,it also causes problems to the judicial staff.The traditional theory of existential theory divided acts into act and behavior of omission.There is a series of drawbacks of this theory,such as the imbalance of punishment,the logic deviation,the concept confusion and so on,so this paper intends to start from the new perspective of normative function theory.Taking the discussion of obligations as the core and trying to make a contribution to the research of the assistor by omission.The article is divided into four parts.The first part is an overview of the assistor by omission.The second part is the theoretical argument of the assistor by omission theory foundation.The third part is the definition of the crime of omission.The fourth part is the application of assistor by omission in our country.The first part is to put forward the view.The part is divided into three sections.The first section is to point out the core issue of the article and the practical and theoretical significance of the study through the practice case.The second section on the basis of this described the concept of the crime of omission.The third section is mainly to elaborate on the theoretical disputes and evaluation about the omission of the help.Finally,through the elaboration of this part,the author puts forward the opinion that the concept of assistor by omission is established.The second part is the argument point of view.The traditional theory attempts to provide the theoretical basis for the punishment of the crime of omission by putting forward the concept of "Equivalent ".so the law applicable of the crime of omission is in accordance with the principle of legality,but the theory is just a specific solution to a specific problem.There is no systematic research and discussion from the overall situation of the criminal law theory.So many disadvantages have been produced.This paper attempts to analyze the approach from the point of "Equivalent ",after the failure,the author turned to the point of obligations and out of the traditional behavior classification system and taking the obligations as the upper concept of behavior.From the point of view of normative analysis,the author analysis Roxin and Jakobs theory of committed crime obligation.The third part is the analysis and argument.The part is divided into three sections,mainly is about act and omission,assistor by omission and one-sided accomplice.The distinction between omission and act is mainly about the coincidence of the two.The amount of compulsory obligation is the key to distinguish crime and help offenders.The author maintain that one-sided accomplice includes the assistor by omission.The fourth part is the demonstration of the application.It is mainly about the integration of the assistor by omission and the criminal law of our country.The relevant provisions of the criminal law of our country are expounded and put forward the solution to the outstanding problems in practice.