Research On Participation Of Omission In Joint Crime

Omission to participate in joint criminality combines joint criminality and omission to commit a crime,and it mainly refers to the participation of the person obligated to act in the act or omission of another by omission.This is arguably the most obscure area of present-day complicity theory.Whether it is the issue of the origin of the duty to act,the distinction between the positive crime and the complicity of the omission,or the equivalence of omission and commission,the German and Japanese criminal law theories are fruitful in their research.In contrast,there is a paucity of research on these issues in our criminal law theory.There are still many doubts about the systematic determination of inaction participation in our judicial practice.The stark contrast between theory and practice highlights the relevance and necessity of research on the issue of omission to participate.This paper attempts to find the law of judgment with the help of judicial practice cases and explore the theoretical track of the problem of inaction participation in joint criminality in China with judicial judgment as a clue.This thesis consists of four parts as follows.The first part introduces the basic theory of omission to participate in joint criminality.Through the basic theory of joint criminality,the participation offender and inaction participation in joint criminality are deduced.The concept of participation in crime is broadly and narrowly defined,and it is classified according to the different time nodes of participation in crime,and the constitutive elements of participation in crime are clarified.The prerequisite for the establishment of participation by omission is the obligation to act,the objective condition is that the actor commits an omission,and the subjective condition is the existence of intentional contact.From the normative point of view,it is determined that the actor has the obligation to act,and the establishment of the inaction crime can be affirmed by judging the specific constitutive elements from the subjective and objective aspects,and there is no need to regard equivalence as an independent constitutive element of the inaction crime.The second part focuses on the problems of inaction in legislation,theory and judicial practice.At the legislative level,there is a lack of general provisions on inaction and accessory offenses.At the theoretical level,there is a problem of unclear and divergent views on the characterization of inaction.German and Japanese criminal law have formed many doctrines on the distinction between positive inaction and accomplice,but each doctrine has certain shortcomings and does not fit with the reality of Chinese criminal law.At the practical level,by examining the judicial case decisions,China’s judicial determination of the lack of unified theoretical guidance on the criteria for the characterization of inaction participant,as well as the difficulty of the specific determination of the principal and accomplice.At the level of punishment,there is the problem of unbalanced sentencing for each co-offender in the omission participation cases.The third part is devoted to addressing the legislative,theoretical and practical aspects of omission in the context of participation in joint criminal activity.From a legislative point of view,the offences of omission and assistance should be expressly provided for in the General Provisions.Theoretically,this paper combines part of the functional dichotomy theory and the important role theory,and proposes a modified theory of obligation distinction.Based on the fact that the essence of crime is the infringement of legal benefit,the obligations are categorized,and different types of obligations are expected to play different roles in the causal process,and their contribution to the infringement of legal benefit varies,so as to establish the relationship between obligations and legal benefit.By examining the degree of correlation between the obligation itself and the legal benefit,we can first distinguish between the perpetrator and the accomplice at the level of violation,and then distinguish between the principal and the accessory at the level of responsibility.The prior act is an exception to the judgment of positive and accomplice.In judicial practice,it is definitely important to enhance the practical application of the theory of distinction of obligations and clarify the specific criteria for the determination of principal offenders in inaction participation.On the issue of punishment,the principle of mitigating or reducing punishment for inaction should be clarified,and attention should be paid to the balance of sentences for each co-perpetrator in inaction participation cases when the cases are heard separately.