| Non-typical omission offence not only exist significant controversy in the group of criminal law, but also has big differences in judicial practice. And the focus of the controversy mainly concentrates on the source of the non-typical omission offence, causality and so on. By selecting a Xiao Zhijun non-typical omission case, which has not entered into the judicial process, but more typical and more debatable, and adopting the relevant theory of Non-typical omission offence, the author analyzes whether the action person named Xiao Zhijun commits a crime or not, and what kind of crime, mainly from the sources of non-typical omission obligation, casual relationship and equal-value the three aspects. The author hopes that some useful and valuable references can be provided to the judicial officers when they deal with the similar cases in their future judicial practice.This paper is divided into four sections:The first part is mainly about the cause of case and the brief introduction about the specific case. Xiao Zhijun sent his girlfriend in childbirth to a hospital. When a doctor told him that his girlfriend's life would be in danger if she was not operated immediately, Xiao Zhijun refused to sign an agreement to do the operation. Therefore, both his girlfriend and their unborn baby were dead because they missed the best chance to be rescued.The second part is mainly to analyze the focus of the dispute of the case. And the focus is on whether Xiao Zhijun has the act obligation or not, and what should be the punishment.The third section analyzes the controversial focus of the case from the perspective of legal theory. Being the main part of this paper, this part analyses the theory of the impure omission. Through analyzing the source of action obligation, the author adds close community as a form of source of the action obligation, and uses it to solve Xiao Zhijun whether to have the duty of act; based on the conditional relation theory, this clears up the relation of impure omission between cause and effect; another important content simply introduces equal-value, the degree of the duty of act theory is used to solve equal-value judgment standard which is illustrated Xiao case. The author explains his perspective of the theory of impure omission, and expresses his views clearly.The last section is the research conclusion. By combining some related legal theories and detailed analysis on the case, this part make a conclusion that Xiao Zhijun constitutes crime and his criminal conduct commits the crime of intentional homicide. |
