Research On Equal-value Of Offense Of Non-typical Omission

From the protection of legal interests purpose, criminal law not only provide as acrime of act, but also provide as a crime of omission. But by the limitation oflegislation technology, law can not define clearly all types of crime. In reality thereare a lot of as a way of omission realize the harm result usually as a way to act. Thecase which the mother do not nurse the baby and lead it death, regardless of whichcountry’s criminal law, has not been defined omission can also be committing crimeof intentional homicide. But from the social harmfulness and the situation of policyrequirements, does not mean that omission should not be punished. In fact, themother should be moral condemnation from outside, most countries including Chinahave recognized that the mother constitute intentional homicide and should bepunished by law.In early nineteenth Century, the scholars of Germany and Japan began to studythe theory of offense of non-typical omission, some countries have legislation aboutoffense of non-typical omission. Both “German criminal law” article13and “Italycriminal law” article40made specific provision on offense of non-typical omission.But these general stipulation is not exhaustive, how to determine the scope ofpunishment of offense of non-typical omission still gave the judge’s discretion, legalprecedent and theory.The author thinks, only when legal interest is infringed as a omission way or as aact way is illegal, namely is equal-value, offense of non-typical omission would bepunished. Study of equal-value of offense of non-typical omission problem shouldfirst understand the development course of offense of non-typical omission and theorigin of equal-value, followed by a clear equal-value in offense of non-typicalomission system status, the final analysis is equal-value should have what elements.The first part of this article mainly discuss theory origin about offense ofnon-typical omission, explore the theory of equal-value of offense of non-typical omission is how to do, in order to pave the way for the following study.The second part mainly elaborate the origin of equal-value of offense ofnon-typical omission problem, including the illegal normative structure of offense ofnon-typical omission and the conflict about principle of legality two aspects. First ofall, act violates the prohibitive norm in criminal law, the essence of offense ofnon-typical omission is omission, it violates the order norm; secondly, discuss offenseof non-typical omission and two important derived principle in principle of legality--prohibition analogy principle and explicit principle. Based on the composite ofcriminal law norms theory, criminal law also contains prohibitive norm and ordernorm. Omission violates order norm, it realize the judgment norm of act in criminallaw stipulation and be punished, do not violate the prohibition analogy principle.Offense of non-typical omission an opening constitution of crime, the judge fill theportions which it has not been written, so it not conflict with explicit principle. Thus,equal-value as a bridge articulate act and offense of non-typical omission began to bestudied.The third part of the equal-value in offense of non-typical omission system statusresearch. Clear equal-value should be shown the core problem of offense ofnon-typical omission punishment, should be in the constitutive requirementsconformity stage, from an objective point of view, the comprehensive crime fact of allelements to measure if omission and act is equivalent.The fourth part is offense of non-typical omission equal-value factor research.Judge that if omission and act is equal true omission is equivalent should have fiveelements. The first element is act duty. The author discuss the scope of act duty ofoffense of non-typical omission from the various theories. The conclusion is act dutyshould be common coexist and mutual restriction between formal and substantial. Thesecond factor is the behavior modes equivalent. Through the analysis, obtains theconclusion that establish equal-value in the arbitrary method of a crime occasion isnot difficult, but in limiting method of a crime occasion, only when behavior remitterwith others. The third element is act duty possibility, clear act duty possibility shouldbe judged as an independent condition of equal-value establishment, and from theobjective conditions of performing capacity. The fourth element is behavior person fails to perform the act duty objectively, although perform certain behaviors, but itsperformance is not quite about eliminating the risk, negative the act. Fifth elementsfor the occurrence of results, discusses which the premise of equal-valueestablishment is occurrence of infringement of legal interest results.