Rethink Offense Of Non-typical Omission

Although the proportion of criminal cases in the form of omission is not much in judicial practice,because omission is not as impressive as action,and omission lacks stereotype,it is a difficult problem for criminal law scholars to determine the crime of omission both in theory and in practice.Justice is like a pendulum clock on the dividing line,vacillating between sin and non-sin,between this crime and that crime.For example,a series of problems,such as the recent incident of a woman passenger falling into a car,whether the driver Zhou constituted a crime,and whether there was a causal relationship between Zhou’s behavior and the result of the death of the victim Che,caused great concern and heated debate in the society and academic circles.Behind the "heat",it actually reflects the unclear content of impure omission crime.Therefore,it is necessary to re-examine the theory of impure omission crime.In order to guide our judicial practice with more mature theory and ensure the stability of law in the future.First of all,this paper draws out the main contents of this study through the controversy caused by the falling of the female cargo woman passenger,including the identification of impure omission,the causal relationship of impure omission,the equivalence of impure omission,the source of obligation and its positioning.Secondly,the specific controversial content is discussed and analyzed.Regarding the determination of omission,it focuses on the analysis of behavior level,first introduces behavior theory,clarifies how to judge behavior in the sense of criminal law,and affirms the rationality of normative behavior theory;Secondly,on the basis of legal norms,it is further pointed out that the prerequisite for legal norms to play its role is to reasonably distinguish between prohibition norms and command norms,so it is necessary to reasonably define the nature of norms with the specific content of norms such as act obligation.With regard to the judgment of the causal relationship of impure omission,this paper introduces and analyzes various theories about the causal relationship of impure omission.Advocating adhering to the position of the possibility of preventing fruit.It is pointed out that the causal relationship of inaction cannot be judged from the purely natural and mechanical point of view,and that the causal relationship between impure inaction and result does not mean that inaction plays a decisive role in promoting the occurrence of result.As long as the omission is a part of the cause of the result,its causal relationship should be recognized.With regard to the equivalence of impure omission,this paper first introduces the basic contents such as the source,concept and existing problems of equivalence.Secondly,it introduces and analyzes the relevant theories of equivalence judgment.On this basis,it recognizes that there are differences between impure omission and action in causal process and domination of results,so it needs equivalence judgment.It also points out that there are structural differences even in impure omission,which can be divided into cause setting type and cause not setting type.If the reason is not set,it can be divided twice according to whether the behavior worthy of criminal law evaluation is used or not,and its equivalence standards are discussed respectively.As to the source of obligation,it introduces the connotation of formal basis and substantive basis as well as various theoretical viewpoints.On this basis,it is proposed that the protection of legal interests or the maintenance of the relationship in reality can not produce the obligation as an act,and does not agree with the legal interests protection tendency of the essence theory.