Study On Joint Crime By Omission

The omission crime is a relatively blank problem on the legislation of criminal law in our country, and the study on this theme started late within theory. There are still many contentious issues, known as "the darkest corner in the criminal theory"? On the contrary, the legislation on joint crime expressly provided earlier, the study started earlier, and even dating back to before the founding of new China. Current study on the theory of complicity presents the unfolding situation, joint crime within a variety of different schools of thought and doctrine, being called "The most desperate chapter in criminal theory". In this context, few people dared to set foot in joint crime by omission because it is a concurrence issue between omission crime and joint crime. But, studies on it have to go on and cases in judicial practice brought real power to it. The study on joint crime by omission will make the theory in omission crime and joint crime deeper. This thesis consists two parts:introduction and text.Introduction of this thesis makes a general discourse about study significance and study methods,as well as the current study status of joint crime by omission.Chapter I primarily discusses the concept of joint crime by omission and the essence of it. Concept is the origin of the theory, and it is also the foundation of system construction. The first step in the study on joint crime by omission is to define its connotation and extension exactly. As to the relation between "joint crime" and "participation", there are three interpretations of "equivalence relation"? differentiated relation"?and "inclusion relation" in theory. Under the language and the legal context in China, participation and joint crime do not completely set up one by one the relationship, the former is natural behavior which do not be evaluated by the legal, and the latter is involved in the evaluation of normative concept. The relationship between them is the relationship between evaluation and assessment results. Therefore, participation by omission can not be converted with joint crime by omission. The "accomplice" in joint crime by omission can not be limited to assistance crime by omission and abettor by omission. also includes Joint Principal Offender by Omission. The "Omission" in joint crime by omission means assisting (or abetting, co-implementing) offense by omission. So," joint crime by omission" and "omission of an accomplice" are two different concepts. Joint crime by omission, is such a crime pattern, in which a person shouldering specific duty, do not meet his duty when he could fulfill it, in order to assists or abets or co-implements offense. Issue of the essence of joint crime by omission originates from antagonism in the theory of "common within offense" and the theory of "common within act".,in which have different specific doctrines. The theory of "different offenses "in the theory of "common within offense" absorbs reasonable factors from the theory of "common within act", makes the theory of "common within offense" more inclusive shared and overcomes the unreasonable phenomenon from the theory of "common within act", such as "the accomplice with no principle offense,", and can interface with on common crime of Chinese criminal law legislation.Chapter II introduces the joint crime by omission in the macro review through omission crime?joint crime and the obligation crime, providing deepening study theoretical basis and starting point for joint crime by omission. First of all, under the perspective of the omission crime, combining with three elements of omission crime, three specific paths are formed:The first path is to explore the joint crime by omission from angle of the act of the omission. The theory of finale Handlungslehre considers that omission has no action and is lack of intentional, which holds negative attitude toward joint crime by omission. Theory of the "third" type of crime means that all forms of unreal omissions are described as "participation by omission" which is called "third offence patterns".Participation by omission cannot be punished more severe than assistance crime by act. The second path is discussing joint crime by omission from duty-perspective of omission crime. Different types of obligations (guardian the guarantor and alert the guarantor) are considered as key element that can distinguish the joint crime by omission and principal crime by omission. Defenders of the guarantor always constitute principal crime by omission and alert the guarantor always constitute assistance crime by omission. There are also other theory which distinguish them through the strength of duty is strong or weak. The third path is from the equivalence point of omission crime, with the help of suitable clause to distinguish joint crime by omission and principal crime by omission. Secondly, under the different principal offender systems, joint crime by omission in the theoretical position is quite different. Under a single system are committed, in accordance with the concept of unified principal offender, not non-existence as an accomplice; and in distinguishing between being committed under the system, differences between non-and joint crime by omission as a principal offender is indeed important. Finally, in the view of obligation offender, the joint crime by omission is even more complex.The controlling power differentiates joint crime by omission and principal crime by omission in Herrschaftsdelikte, but in obligation crimes, all the actions in violation of positive obligations constitutes are all considered as principal crime, and participation of obligation crimes exists only in very specific circumstances.Chapter ? demonstrates the establishment conditions of joint crime by omission. As a subordinate concept of omission crime, joint crime by omission has its precondition of duty to act, which has the same content between joint crime by omission and principle omission. In real sense, the duties of joint crime by omission conclude the duty of state or business?duty of family protection or similar family protection?duty of close social community and duty of antecedent act. Besides the duty to act, the second establish condition of joint crime by omission is omission act. How to distinguish between acts and omissions, reprobation point theory has more relative reasonableness than energy theory, causal relationship theory, social significance theory and legal interests theory.Omission manifestation conclude couple omission act and mixture both omission and act. On the division, omission can implemented by omission assistance, omission abets and omission of common-implement. Organizational omission can't be recognized as behavior in fact. The third element is the subjective aspect: Joint crime by omission has two offence forms which are deliberate offence and clanger in the subjective aspect. In form, the subjective contact show two forms which are bi-directional contact and one-way contact.In content, contact of subjective intention belongs to the liaison between crimes, rather than liaison between natural behaviors and liaison between intentional crimes.Chapter ?, the author discusses normal types of joint crime by omission, including assisting offence by omission, abetting offence by omission and co-implementing offence by omission. Co-implementing offence by omission could be affirmed limitedly. In couple omission acts, the actor who controls the crime in action or in norm can be regarded as co-implementing offence by omission. In single omission, the person can be regarded as co-implementing offence by omission only when he(or she) has actural control power to avoid damage by omission. The establishment of assistance crime by omission concludes three conditions which are duty to act assistance attention in subjective and assistance act in objective. Abetting by omission should be affirmed in fact level.When criminal by omission has duty to prevent other's abetting act,he can be regarded as abetting crime by omission because of other's abetting, so abetting by omission should be also affirmed in norm level.In Chapter V particular types of omission complicity has been described, which primarily concludes joint crime by omission in one-way and two-way; beforehand and afterwards; intentional and faulty. Some contentious issues of joint crime by omission are analyzed.Chapter ? analyzes other questions about joint crime by omission,such as relationship between joint crime by omission and indirect principal offender by omission; issue of error in joint crime by omission; unfinished forms of joint crime by omission; and so on.Chapter ? discusses the issue about punishment of joint crime by omission. Joint crime by omission to criminal penalties should follow common penalty principle and individual penalty principle. Because of so many differences between act crime and omission crime,such as humanity base?specification nature,legal interest types and guilt degree and so on, omission should be punished lighter than act crime which is the general penalty principle of joint crime by omission. In internal, individual principle for penalties should be applied. Co-implementing offence by omission should be committed according to punishment principles of single-implementing crime by omission. Independent punishment principles should be followed in abetting crime by omission. Assistance crime by omission should be committed based the principle of "dual mitigating punishment". As to distinguishing the principal from accessory within joint crime by omission, we can affirm them from the following factors:the duty, probability to act and controlling power,etc.