The Essence Of Active Obligation Of The Impure Crime Of Omission

The impure crime of omission in the field of criminal law, has always been acompelling problem. She was like a ghost winding Western scholars over one or twocenturies, when under the shadow of omission is placed as a committed, once "withever fewer chariots and horses at her door." Now, she was in the same faces appear,enable researchers of the criminal law and judicial practice to palpitations and heart.Revealing the mystery of the impure crime of omission was defined out the source ofobligation. Because all the problems of impure omission are basis on specificobligations, and because it not only reflects the omission of basic facts and theconstitutive elements of crime, but also to decide whether the omission wasestablished. But what is this obligation? Nowadays, it is still an "unsolved problems"or the "most difficult challenge to and has not been satisfactory."Obligations of the impure crime of omission, also referred to the source ofobligation or the source of duty, it means the condition of obligation, in other words,the circumstances in which the perpetrator has obligations to prevent the occurrenceof crime results. It is also tell us why the non-action offender need to be punished andthe key force of the impure crime of omission. But how to definited the obligation ofthe impure crime of omission? In the theoretical circles, there is a large gap in thelegislation and practice of criminal law, according to the different stages of theirevolution, generally experienced the "obligation in the form saying" and "substantiveobligation saying"."Obligation in the form saying" only poor outlines the source ofobligation and type classification, and it just builds up a broad and generalbasic-framework. The framework only provides the type of the obligations and lackof clearly defined degree of obligation. These types of obligation and based on otherfacts or legal obligations are in the fuzzy state. In judicial practice, according to the"obligation in the form saying", we still cannot be accurately defined the scope of theobligations. As the independent view of criminal law about philosophy of criminal law in1930s, such a conscious and independent of the criminal law scholars inaddition to the criminal law of impure omission as a source outside the form ofobligations, starting from the source itself to criminal law searching of impureomission as a source of obligations."Substantive obligation saying", in one hand, itviews the relationship between the perpetrators and the protection of legal interests ofthe victime in order to find out the reasons; in other hand, it view the relationshipbetween the perpetrator and the victims to seek out the dependency."Substantive obligation saying", it finds out the duty of obligation from arealistic or true fact, and it explains the punishment reasons in a deeper way.Compared with the form saying, it has certain progress in the theoretical significance.Because in judicial practice, the simple type "form as an obligation to say" can notmeet the demands of judicial practice. Today many impure omissions which does notappear as cases are difficult to found only from the standpoint of formalism asreasons. But the crime of omission shall draw conclusions and do not meet the legalpractice of workers by simple emotional and professional legal literacy. So weinevitable in unconscious state to achieve breakthrough in criminal law theory, then tolead the obligation from the formalism of substance.In the theory of obligation in our country, we should introduce a concept ofsubstantive obligations. And from two ways to define the essence of the obligations,in one hand, it makes the protect the legal interest in the specific risk state to be theessence of the obligations under; in other hand, nor the offender or the victim has toprotect the legal interest in the specific risk state and there is a specific relationshipthat is the burden of the obligation. I would like to point out is both aspects are fromdifferent level answered the essence of the obligations under. Protect the legal interestin the specific risk State was first to explore the origins of philosophy as the essenceof the obligations under. Impose a burden on the perpetrator of the criminal law isbased on the purpose of protecting the legal interests of the criminal law. Whenpeople took against the law, the Penal Code for the protection of the law to set aprohibitive provisions. When the criminal law protection of benefits from specificdangerous state, the criminal law also set an obligation to prevent legal interests to beagainst. For example, when the knife cut on the body, the life interest was in the specific risk then the criminal law requirement a behaviour to prevent the risk. If heviolated to the requirements of the criminal law must bear the adverse consequencesof the criminal law. For instance, I accidentally scratched the arteries in the left legwith a knife, if I do not rescue in time he will go to heaven due to excessive bleeding.In order to save the life at specific risk, the Penal Code for the protection of the lawwill need to set up an obligation. Secondly, the second answer is why set this as thecriminal law of obligations to be borne by the perpetrator. Because not as humanbeings have a specific legal status, to dominate the process of legal interest is againstreality, and only the behavior when one can salvage law, set this obligation will havesocial effects of the criminal law in order to prevent the occurrence of violations oflaw. Therefore, only proceeding from both to define the scope of the obligation.