Discussion On The Sources Of The Obligation To Non-typical Criminal Omission

Obligation is a vital element to non-typical criminal omission, and it is alsocomplicated. Unlike typical criminal omission, there are no such provisions aboutnon-typical criminal omission according to Chinese Criminal Law, so it is difficult todefine the sources of the obligation. Unfortunately, the theoretical discussiondeveloped so slowly that it can’t efficiently guide the judicial judgment. For example,in some similar cases, the judgments are totally different. In my opinion, the reason ofdifferent judgments is different understanding of the sources of the obligation. Thus,it’s necessary to study further on the sources of the obligation to non-typical criminalomission. And it will not only develop the relevant theories, but also avoid differentjudgments in similar cases to keep justice.This paper is divided into four parts:Part Ⅰ:This chapter mainly analyzes some fundamental issues about theobligation to non-typical criminal omission, such as concept, characters, condition ofestablishment.PartⅡ:This chapter mainly introduces several theories about the sources of theobligation to non-typical criminal omission, including the theories in continental lawsystem (such as formal theory, substantial theory) and Chinese Mainland (such asformal theory, substantial theory, formal-substantial combining theory) PartⅢ: This chapter mainly rethink the conventional classification of the sourcesof the obligation to non-typical criminal omission. According to conventional criminaltheories, the sources of the obligation is classified:①Obligation on law as expresslyprovided;②On duty or requirements of business;③Obligation arising from legalacts;④Obligation arising from preceding behaviors. But, the biggest problem ofsuch classification is that the standards are not uniform. In order to specify theproblem, the author analyzes each source of the obligation.Part Ⅳ:This chapter mainly reconstructs the sources of the obligation tonon-typical criminal omission. The author divides the sources of the obligation intolegal acts and preceding behaviors. The concept of legal acts is redefined, and therelationship between legal acts and conventional source is one of most important parts,as well as the concept of legal acts. The most important part of preceding behaviors isthe scope of preceding behaviors, namely whether the preceding behaviors includeillegal acts or criminal acts.