Research On Equivalence In Offense Of Non-Typical Omission

The omission crime is a difficult problem in criminal law theory and judicial practice.The criminal law only stipulates the constituent elements of positive crime and typical omission offense,but not stipulates the constituent elements of offense of non-typical omission.Some scholars claim that the punishment to offense of non-typical omission is conflicted to Principle of Legality to a certain extent.And the theory of equivalence is put forward to solve the conflict,in order to bridge the discrepancy between offense of non-typical omission and positive crime,and balance the two functions of criminal law on punishment to crimes and protection of human rights.The core of research on equivalence in offense of non-typical omission is to put a reasonable limit to the punishment of offense of non-typical omission.This paper is purposed to help to further study the theory of equivalence by discussing the basic meaning of equivalence,system status of equivalence,judgment standard of equivalence,and with the analysis of the specific cases in judicial practice.This paper is divided into three parts as follows:The first part clarifies the fundamental problems about the origin and the meaning of the equivalence of offense of non-typical omission.The meaning of the equivalence offense of non-typical omission is that offense of non-typical omission equals to positive crime in the constituent elements instead of harmful consequence or illegality.Through studying the historical evolution of the theory of equivalence and analyzing the confliction between punishment to offense of non-typical omission and Principle of Legality,the paper clarify the necessity of putting forward the theory of equivalence.The second part is mainly about the system status of the theory of equivalence.There are several different opinions on the system status of the equivalence of offense of non-typical omission.Through clarification and analysis of the three opinions,the author holds that offense of non-typical omission is possible to equal to positive crimes and that the theory of equivalence shall be placed in the constitutive elements of crimes,independent of the act duty.The third part is about the judgment standard of equivalence,which is also the focus of this paper Through the introduction and analysis of the doctrine of subjective standard and the doctrine of objective standard in the theory of German and Japanese criminal law and the judgment standard proposed by scholars in our country,and an analysis of the factual factors that lead to the occurrence of the harmful consequence,the author suggested that we should determine the different judgment standard of equivalence according to two different factors that lead to the harmful consequence so as to reconstruct the judgment standard of equivalence.To illustrate this point of view,this paper analyzes the actual cases in detail.