Research On The Source Of The Obligation Of Impure Omission

Judgment of the sources of the obligation is a major theoretical issue of impure negative crime.In recent years,due to the introduction of German and Japanese criminal law theory.Chinese scholars began to reflect on the defects of our traditional theory of obligation of impure negative crime,tried to search for it as the aspect of essence.Chinese traditional theory of impure negative crime is to enumerate the obligation in form,standard of our traditional theory is relatively clear.Our essence theory of obligation is the theories introduced from abroad,and it’s better to define the obligation from the aspects of the essence.Nowadays,both of the theories has many supporters in China,and there are some scholars want to combine these theories together and then make a new approach to solve this issue.The theoretical dispute is not conducive to the proper handling of judicial practice.In this paper,we analyze the existing theory of obligation sources and relevant cases,use the theory of expectant possibility to judge the rationality of the obligation theory.Impure negative crime is unique and distinctive,clarifying these relevant concepts is the basis for the further discussion.Analyze these existing theories,it can be found that the theory of obligation in Germany and Japan has a process from form to substance.But in China,we also have the compromise theory which is trying to combine both the theories together.It’s important to define the scope of obligations if we want to condemn an action of impure negative crime.No matter what kind of theory we take,it’s necessary for us to explain how could we expect a doer to take such an obligation.In the view of expectant possibility,our existing theories are impossible to solve the problem of obligation alone.Therefore,we should set a formal limitation for the obligation of impure negative crime,and then judge the obligation from the aspects of essence under the standard of equivalence.In order to clarify the reasonable obligation of impure negative crime,our formal judgment should take precedence over the substance judgement.In the process of our judgement,the content of the formal obligation should be specified.And in the aspect of essence,weshould focus on the equivalence between the impure negative crime and traditional crime.