Study On The Basic Problems Of Non-Typical Omission Offense

The related problems of Non-typical omission offense is always the focus of Nonfeasance criminal theory research. Since the beginning of the nineteenth Century, the Non-typical omission offense theory through four stages :the causal relationship, illegal, the behavior person type and constitutive requirements compliance.With the further study, the Non-typical omission offense problems increasingly prominent. Since Nonfeasance criminal divide into Typical omission offense and Non-typical omission offense, scholars have questioned the existence of Non-typical omission offense whether breach the legal principle of crime and punishment. Then put forward the equivalent property theory to building a bridge of Non-typical omission offense apply legal provisions as Action criminal to punish. How to limited the Non-typical omission offense punishment range, as the focus of Non-typical omission offense theory. Combine with the constitutive requirements of Nonfeasance criminal to constitute the constitutive requirements of Non-typical omission offense, and then limited the scope of punishment of Non-typical omission offense to show Criminal law to protect the legal interests, in order to be operable in judicial practice. This paper is divided into four chapters:The first chapter, Nonfeasance criminal can divide into Typical omission offense and Non-typical omission offense, analyses the relationships between the two crimes, correct classify both act behavior and not act behavior in the crime. Combine with Chinese and foreign scholars describe the Non-typical omission offense features to defined as, Non-typical omission offense refers to the subjects have special legal obligation, able to perform the obligation but does not perform, in order to seriously violates the legal interests which can be composed as act behavior of crime.The second chapter, the main research is punished Non-typical omission offense whether breach the legal principle of crime and punishment. The provisions of the Criminal law does not rule of Non-typical omission offense, so need theoretical support to apply Action criminal to punish, therefore have a problem which are breach the legal principle of crime and punishment. This chapter analysis the derived of the legal principle of crime and punishment are principle of prohibition of analogy and the principle of clarity, obtain a conclusion is punished Non-typical omission offense did not breach the legal principle of crime and punishment.The third chapter, mainly discusses the equivalent property question of the Non-typical omission offense. Equivalent property theory is solved that Non-typical omission offense and Action criminal have differences in the exist structure, need to rely on the equivalent property to fill the differences, in order to Non-typical omission offense and Action criminal be equivalent in value judgment. This chapter mainly studies that rely on the principle of unification of subjective and objective to constitute the judgment standard of the equivalent property.The fourth chapter, the main research is constitute the constitutive requirements of Non-typical omission offense. Because Non-typical omission offense essence is Nonfeasance criminal, so it is necessary to be limited by Nonfeasance criminal constitutive requirements. So the constitutive requirements of Non-typical omission offense should include five aspects: behavior person have specific obligation; behavior person have possibility to act; exist a fact that behavior person did not act; behavior person did not act caused by the infringement of legal interests or dangerous; exist the causal relationship between behavior person did not act and infringement of legal interests or dangerous. Among these, the key points are obligation need that based on formal obligation and essential obligation as supplement, combine with these to constitute the exist range of obligation.