Study On The Duty To Act In The Offense Of Non-typical Omission

The duty to act is the basic constituent element to determine whether the offense of non-typical omission is established,so it has been the focus of research on the non-typical omission offense.In Germany and Japan,the obligatory sources has gone through the process from the formal obligation theory to the substantive obligation theory.China’s criminal law academia has also engaged in intense discussions about whether it should be understood formally or substantially,but there are still many questions that need further research.And because our criminal law does not explicitly provide the duty to act in the offense of non-typical omission,judicial practice tends to be conservative.The analysis is not thorough when determining whether there is an obligation,and there are some problems such as inconsistent standards.Therefore,this thesis intends to study on the duty to act in the offense of non-typical omission,focusing on clarifying the source of the duty to act and the specific content of the different types of duties to act.The first part first solves basic concepts,in order to lay the foundation for the following discussion.Then by observing 58 specific cases,it is proposed that the existing obligation theory that being unable to cope with complex reality,neglecting substantive analysis and lacking a unified standard.The second part briefly reviews and analyzes the relevant theories of the sources of obligation in Germany,Japan and China,and finds that from the perspective of the combination of formal obligations and substantive obligations,the scope of duy to act can be more rationally defined.The third part puts forward the viewpoint of this thesis,the dualism of duties to act,that is,the theory of combining formalized examination and substantive examination.The dualism of duties to act can take into account the two functions of protecting legal interests and guaranteeing freedom.Therefore,it is necessary to adopt the dualism.The internal structure of dualism requires that the formal obligation is judged first and ground for innocence is the absence of substantive obligaiton.Refining and Expanding the sources of formal obligations based on the social division.Guided by equivalence theory,the substantive requirement of a duty to act is that the defendant has control over the cause of damaging result.Finally,properly resolve a controversial case of intentional homicide by applying the dualism of duty to act.The fourth part discusses the types of obligations based on the dualism of duties to act,in order to effectively guide judicial practice.Against the background of the social division of labor model,the obligatons are divided into the type of protection obligation and the type of supervision obligation.The former includes the protection obligation based on the maintenance relationship,close relationship,voluntary takeover and job or business requirements,while the latter includes obligations to supervise property and persons.The prior conduct is discussed separately because it is incidental and requires additional determination in accordance with general legal principles.The non-liability actions,omissions,intentional or negligent actions may lead to act duty in principle.However,the prerequisite is that these conducts cause realistic,specific and urgent danger to the legal interest protected by criminal law,and the actor controls over the cause of damaging result.