On The Attribution And Imputation Of Untypical Crime Of Omission

Untypical crime of omission is a special form of omission-crime,and its constitutive requirements are not clearly stipulated in the criminal law norms,and it is different from typical omission-crime.The concept of untypical crime of omission should include substantive and formal elements.The essential elements are the violation of legal benefits and the violation of obligations.Formal elements are manifested as crimes achieved by inaction,which is usually achieved by action.Although the untypical crime of omission are punished by analogizing action crime,the untypical crime of omission should have unique method of attribution and objective imputation due to the particularity of its behavior and the requirements of the guarantor's status.Realizing the objective imputation of the actor on the result is the precondition for implementing the actor's subjective imputation,and also the basis for bearing criminal responsibility.The theory of causality includes two levels:attribution and objective imputation.Attribution is based on fact,which solves the question of whether there is a factual link between inaction and result;objective imputation is based on legal norms and principles.There is a logical relationship between attribution and objective imputation.Attribution is a necessary condition rather than a sufficient condition for attribution.Without attribution,there is no objective imputation.Objective imputation is the ultimate goal of attribution.Causal force makes inaction can affect the outcome and become the cause of the outcome.Causal force is the basis to discuss the attribution.The causal force of inaction comes from the utilization and maintenance of the dangerous state of legal interest.Because the danger becomes a real result,there is a fact connection between inaction and results.In the specific judgment,the attribution of untypical crime of omission is based on the possibility of act.The theoretical basis is condition theory,using the methods of "hypothesis" and "addition" to make specific judgmentsAct duty is a topic that cannot be avoided by non-action crime,and its system status and role should be clarified.Duty of act is normative element,so it should belong to the objective imputation,which plays the role of restricting the subject of untypical crime of omission.Duty of act solves the problem of who can be blamed in objective aspect,and it provides a basis to judge what kind of behavior to can be blamed in objective aspect.The content of the duty of act differs according to the type of the inaction crime,which is specifically expressed as follows:(1)there is a hierarchical difference of duty between the typical crime of omission and the untypical crime of omission.The former is manifested as a behavioral obligation,while the latter is manifested as an obligation to prevent the occurrence of results.(2)There is a degree difference of duty between the principal of untypical crime of omission and the accessory of untypical crime of omission,which mainly manifested as the difference between "preventing the outcome" and "impeding the outcome".In addition,the source of the act duty should be based on the advantages of both the formal theory and substantial theory.The form of the obligation should be used preferentially,and the substantial obligation plays the role of explanation and supplement.The imputation of untypical crime of omission should be based on the the objective imputation theory,and based on the characteristics of inaction to modified.First,using risk reduction theory,if the risks which are not allowed by law continue to exist because of not performing the duty of act,then it can be said that inaction is not allowed by the law;second,judging whether the risks which are not allowed by law are realized.Maintaining the normal causal process,and excluding abnormal situations that do not have normative significance and the situation which does not have the possibility of avoiding results;third,judging whether the results are within the validity scope of the constitution of a crime and excluding self-responsibility of the victim and the third person who intervenes in the causal process.