Study On The Obligation To Act In The Crime Of Non-typical Omission

The behavioral basis of omission is constructed as an obligation.How to understand the obligation?Intuitively,as an obligation is not found in the provisions of the criminal law,what kind of criteria should be used as the basis for the obligation?This article is divided into four parts.The first part needs to solve the basic theoretical problem as an obligation,and put forward the problems that arise in practice as the theory of obligations.In the first section,the issues of conceptual issues,functions,and systems as obligations were addressed.In the second section,based on the author's observation of specific cases,two problems exist as the theory of obligations.One of the problems is that in the judicial practice,there is a basis for neglecting substantive obligations.The second problem is that from the same-case difference judgment phenomenon,we found that the trial practice as an obligation arises inconsistently based on the recognized standards.The second part addresses the issue of the relationship between obligations and equivalence and causation.The inherent stratum of crime theory system determines the behavior first,so there is no need to consider causality as an obligation.This article holds that equivalence is a concept of criminal law interpretation rather than an independent constituent element.Obligations need to be judged under the principle of equivalence,the interpretation of criminal law.The equivalence judgment adopted in this paper is the neutralization judgment.The principle of equivalence as an obligation is mainly reflected in the judgment of the basis of production,and the essence of the basis for the production is carried out under the guidance of equivalence.The third part sorted out the doctrines based on the obligations of Germany and Japan as well as China.The first section sorted out the German doctrine based on the doctrines of obligations,including the theory of obligations in the history of the doctrine,the obligation of the substantive law,the theory of the relationship between the social groups in the plane,the dependency relationship,the theory of the relationship of trust,and the dichotomy of the function.Combine the advantages and disadvantages.The second section reviews Japan's obligations as a basis for its doctrines,including sorting out the forms of triadism,de facto acceptance,preemptive behavior,and exclusive doctrine that appear in the history of doctrines.The third section combs the theory of our country's obligations as the basis of its doctrines,including the categorization of the form of quartiles,commitments,and exclusive doctrines.The fourth part put forward the theory of the basis of the obligations arising from this paper.This article advocates the generation of a genesis theory based on the two dimensions of form and substance.In terms of form,draw on the dichotomy of the German function.In essence,it has better anti-fruit ability as a criterion.In addition,the emphasis on exclusion as an obligation can be applied to each emerging basis.On the basis of the third part,the fourth part puts forward the basis for the obligation arising from this paper.This article advocates the generation of obligations based on the two dimensions of form and substance.In the form of drawing lessons from the dichotomy of Germany's function and Japan's exclusive doctrine,we combine judgment standards that have substantially better anti-fruiting abilities.In addition,this article takes the protection of the victim as one of the elements of the examination of the substantive standards,and excludes the situation in which the victim needs protection.In the fifith part,this article selected nine specific cases for analysis.This article selected three cases of protection relations in the family law.These three cases are:Formal but not substantive,both formal and substantive,both formal and substantive but with exclusions.This paper hopes to clarify the level of analysis through the analysis of these three issues and also illustrates the necessity of such analysis.For other categories,this paper selects one representative case and analyzes each case as an obligation.This article hopes to examine the existing problems by applying the adopted theories to practical cases.Through the examination of specific cases,this article finds that the sporadic protection relationship and the judgment of the substantive basis need to rely heavily on the experience and ability of the judge.This is where the theories adopted in this article need to be improved.