On The Guarantor Status Of Impure Omission Offenses

Since Luden firstly proposed to “classify the offense of omission as offense of typical omission and offense of non-typical omission” in 1840,the offense of non-typical omission has become the research object of the German criminal law.Since Binding firstly claimed to“guarantee human beings are the sole element of criminal responsibility of the offense of omission” in 1872,the guarantor status of the offense of non-typical omission has become the debate focus of the German criminal law.Through teasing the development history for the theory of offense of non-typical omission and guarantor status in Germany,this paper researches its historical progress of legal transplantation in China to clarify the value significance and key issue of researching the guarantor status of the offense of non-typical omission in China;compares the current legislation situations and law amendment history of China and Germany,and analyzes the deep reasons of legislation differences of China and Germany;comprehensively teases different theories of China and Germany about the guarantor status of the offense of non-typical omission to summarize advantages and point out disadvantages;generalizes the similarities and differences of criminal justice of China and Germany,and focuses on core problems of judicial differences of China and Germany.In the position of philosophy of law,this paper advocates the social system theory;in the criminal theory system,this paper advocates the functionalism of criminal law;in the problem of guarantor status of the offense of non-typical omission,this paper advocates the theory of jurisdiction.Starting from the basic position of the social system theory,the functionalism of criminal law,the theory of jurisdiction,this paper reexamines the disputed cases of guide cases of China's criminal justice,and proposes new opinions.Based on the comparative research on criminal legislation,justice and theories of China and Germany,this paper appeals the legislators to set the general rules about offense of non-typical omission in China's general provisions of criminal law,and increase the “crime of non-salvation-in-danger” in China's specific provisions of criminal law.