A Study Of The Conflict Between The Determination Of Offense Of Non-typical Omission And The Principle Of Legality

The crime of omission is generally divided into offense of typical omission and offense of non-typical omission in criminal law theory.For the offense of typical omission,the specific provisions of criminal law clearly stipulate the guarantor and the crime of omission,so there is no violation of the principle of legality of crime and punishment.But in addition to satisfying the constitutional requirements of the crime of general omission,the judicial organs always have doubts about the contradiction with the principle of legality of crime and punishment in the determination of the offense of non-typical omission because the criminal law does not explicitly stipulate the specific guarantor’s obligation to act and the content of omission.The first chapter of this article begins with the understanding of the basic concepts of the offense of non-typical omission.Firstly,it solves the behavioral problems of non-real omission in the criminal law norms,and divides acts into crimes constituted by acts and crimes constituted by acts.Secondly,it starts with different theories of the concept of non-real omission in the crime of non-omission.It reviews the legislative overview of Germany,Japan,the mainland of China and Taiwan on the elements of the establishment of the crime of non-real omission.After sorting out the theory of fierce collision,the second chapter of this article focuses on whether the crime of non-real omission violates the principle of legality of crime and law,and proposes that the punishment of non-real omission should be grasped in essence.This chapter first outlines the ideological origin and development process of the principle of legality of crime and punishment in criminal law,and then summarizes the opposite theory of whether punishing the crime of non-real omission violates the principle of legality of crime and punishment,thus leading to the conflictbetween the specific aspects of the crime of non-real omission and the principle of legality of crime and punishment.That is to say,first,punishment of this kind of non-real omission crime which is not explicitly stipulated in the criminal law,which applies to the subject and content of the crime stipulated in the criminal law,and there is a doubt that the criminal law should be applied by analogy.Secondly,because the scope of guarantor’s establishment and his obligation to act are not clearly stipulated in the punishment of non-real omission in criminal law,it is difficult to determine under what conditions the acts conform to the constitutive requirements of non-real omission in practice,which leads to the ambiguity of the scope of punishment and the conflict with the principle of definiteness in the principle of legality of crime and punishment.From these two aspects,the reasons for the conflict between the two are analyzed.It is believed that,On the premise of implementing the principle of legality of crime and punishment in a country ruled by law in essence,A reasonable and fair interpretation of the conflict between them will not violate the principle of legality for a crime unless the crime of omission is punished.In the third chapter of the article,the author tries to reconcile the conflict between the crime of non-real omission and the principle of legality of crime and punishment in the theory of equivalence,and summarizes the history of the theory of equivalence and its development.This paper analyses the possibility of equivalence and the scope of what judgment between omission and act,and clarifies the requirement of equivalence and how to judge their equivalence,so as to solve the conflict between them in the scope of equivalence hermeneutics,and further clarifies the theoretical viewpoint that punishing the crime of omission is not against the principle of legality.In the conclusion chapter of the article,starting from the basic national conditions of our country and implementing the concept of ruling the country by law,we advocate respecting the existing criminal law provisions and norms in judicial practice,legitimately and reasonably interpreting the non-real omission in practice by various methods of criminal law interpretation,and truly embodying the organic unity of political,social and legal effects.